Chief Justice Taney

Mr. Chief Justice Taney delivered the opinion of the court.

This case has been twice argued. After the argument at the last term, differences of opinion were found to exist among the members of the court; and as the questions in controversy are of the highest importance, and the court was at that time much
pressed by the ordinary business of the term, it was deemed advisable to continue the case, and direct a re-argument on some of the points, in order that we might have an opportunity of giving to the whole subject a more deliberate consideration. It has accordingly been again argued by counsel, and considered by the court; and I now proceed to deliver its opinion.

There are two leading questions presented by the record:

Had the Circuit Court of the United States jurisdiction to hear and determine the case between these parties? And

If it had jurisdiction, is the judgment it has given erroneous or not?

The plaintiff in error, who was also the plaintiff in the
court below, was, with his wife and children, held as slaves by
the defendant, in the State of Missouri; and he brought this
action in the Circuit Court of the United States for that
district, to assert the title of himself and his family to
freedom.

The declaration is in the form usually adopted in that State
to try questions of this description, and contains the averment
necessary to give the court jurisdiction; that he and the
defendant are citizens of different States; that is, that he is a citizen of Missouri, and the defendant a citizen of New York.

The defendant pleaded in abatement to the jurisdiction of
the court, that the plaintiff was not a citizen of the State of
Missouri, as alleged in his declaration, being a negro of African descent, whose ancestors were of pure African blood, and who were brought into this country and sold as slaves.

To this plea the plaintiff demurred, and the defendant
joined in demurrer. The court overruled the plea, and gave
judgment that the defendant should answer over. And he thereupon put in sundry pleas in bar, upon which issues were joined; and at the trial the verdict and judgment were in his favor. Whereupon the plaintiff brought this writ of error.

Before we speak of the pleas in bar, it will be proper to
dispose of the questions which have arisen on the plea in
abatement.

That plea denies the right of the plaintiff to sue in a
court of the United States, for the reasons therein stated.

If the question raised by it is legally before us, and the
court should be of opinion that the facts stated in it disqualify the plaintiff from becoming a citizen, in the sense in which that word is used in the Constitution of the United States, then the judgment of the Circuit Court is erroneous, and must be reversed.

It is suggested, however, that this plea is not before us;
and that as the judgment in the court below on this plea was in
favor of the plaintiff, he does not seek to reverse it, or bring it before the court for revision by his writ of error; and also that the defendant waived this defence by pleading over, and thereby admitted the jurisdiction of the court.

But, in making this objection, we think the peculiar and
limited jurisdiction of courts of the United States has not been adverted to. This peculiar and limited jurisdiction has made it necessary, in these courts, to adopt different rules and principles of pleading, so far as jurisdiction is concerned, from those which regulate courts of common law in England, and in the different States of the Union which have adopted the common-law rules.

In these last-mentioned courts, where their character and
rank are analogous to that of a Circuit Court of the United
States; in other words, where they are what the law terms courts
of general jurisdiction; they are presumed to have jurisdiction,
unless the contrary appears. No averment in the pleadings of the
plaintiff is necessary, in order to give jurisdiction. If the
defendant objects to it, he must plead it specially, and unless
the fact on which he relies is found to be true by a jury, or
admitted to be true by the plaintiff, the jurisdiction cannot be
disputed in an appellate court.

Now, it is not necessary to inquire whether in courts of
that description a party who pleads over in bar, when a plea to
the jurisdiction has been ruled against him, does or does not
waive his plea; nor whether upon a judgment in his favor on the
pleas in bar, and a writ of error brought by the plaintiff, the
question upon the plea in abatement would be open for revision in
the appellate court. Cases that may have been decided in such
courts, or rules that may have been laid down by common-law
pleaders, can have no influence in the decision in this court.
Because, under the Constitution and laws of the United States,
the rules which govern the pleadings in its courts, in questions
of jurisdiction, stand on different principles and are regulated
by different laws.

This difference arises, as we have said, from the peculiar
character of the Government of the United States. For although it
is sovereign and supreme in its appropriate sphere of action, yet
it does not possess all the powers which usually belong to the
sovereignty of a nation. Certain specified powers, enumerated in
the Constitution, have been conferred upon it; and neither the
legislative, executive, nor judicial departments of the
Government can lawfully exercise any authority beyond the limits
marked out by the Constitution. And in regulating the judicial
department, the cases in which the courts of the United States
shall have jurisdiction are particularly and specifically
enumerated and defined; and they are not authorized to take
cognizance of any case which does not come within the description
therein specified. Hence, when a plaintiff sues in a court of the
United States, it is necessary that he should show, in his
pleading, that the suit he brings is within the jurisdiction of
the court, and that he is entitled to sue there. And if he omits
to do this, and should, by any oversight of the Circuit Court,
obtain a judgment in his favor, the judgment would be reversed in
the appellate court for want of jurisdiction in the court below.
The jurisdiction would not be presumed, as in the case of a
common-law English or State court, unless the contrary appeared.
But the record, when it comes before the appellate court, must
show, affirmatively, that the inferior court had authority, under
the Constitution, to hear and determine the case. And if the
plaintiff claims a right to sue in a Circuit Court of the United
States, under that provision of the Constitution which gives
jurisdiction in controversies between citizens of different
States, he must distinctly aver in his pleading that they are
citizens of different States; and he cannot maintain his suit
without showing that fact in the pleadings.

This point was decided in the case of Bingham v. Cabot, (in
3 Dall., 382,) and ever since adhered to by the court. And in
Jackson v. Ashton, (8 Pet., 148,) it was held that the objection
to which it was open could not be waived by the opposite party,
because consent of parties could not give jurisdiction.

It is needless to accumulate cases on this subject. Those
already referred to, and the cases of Capron v. Van Noorden, (in
2 Cr., 126,) and Montalet v. Murray, (4 Cr., 46,) are sufficient
to show the rule of which we have spoken. The case of Capron v.
Van Noorden strikingly illustrates the difference between a
common-law court and a court of the United States.

If, however, the fact of citizenship is averred in the
declaration, and the defendant does not deny it, and put it in
issue by plea in abatement, he cannot offer evidence at the trial
to disprove it, and consequently cannot avail himself of the
objection in the appellate court, unless the defect should be
apparent in some other part of the record. For if there is no
plea in abatement, and the want of jurisdiction does not appear
in any other part of the transcript brought up by the writ of
error, the undisputed averment of citizenship in the declaration
must be taken in this court to be true. In this case, the
citizenship is averred, but it is denied by the defendant in the
manner required by the rules of pleading, and the fact upon which
the denial is based is admitted by the demurrer. And, if the plea
and demurrer, and judgment of the court below upon it, are before
us upon this record, the question to be decided is, whether the
facts stated in the plea are sufficient to show that the
plaintiff is not entitled to sue as citizen in a court of the
United States.

We think they are before us. The plea in abatement and the
judgment of the court upon it, are a part of the judicial
proceedings in the Circuit Court, and are there recorded as such;
and a writ of error always brings up to the superior court the
whole record of the proceedings in the court below. And in the
case of the United States v. Smith, (11 Wheat., 172,) this court
said, that the case being brought up by writ of error, the whole
record was under the consideration of this court. And this being
the case in the present instance, the plea in abatement is
necessarily under the consideration; and it becomes, therefore,
our duty to decide whether the facts stated in the plea are or
are not sufficient to show that the plaintiff is not entitled to
sue as a citizen in a court of the United States.

This is certainly a very serious question, and one that now
for the first time has been brought for decision before this
court. But it is brought here by those who have a right to bring
it, and it is our duty to meet it and decide it.

The question is simply this: Can a negro, whose ancestors
were imported into this country, and sold as slaves, become a
member of the political community formed and brought into
existence by the Constitution of the United States, and as such
become entitled to all the rights, and privileges, and
immunities, guarantied by that instrument to the citizen? One of
which rights is the privilege of suing in a court of the United
States in the cases specified in the Constitution.

It will be observed, that the plea applies to that class of
persons only whose ancestors were negroes of the African race,
and imported into this country, and sold and held as slaves. The
only matter in issue before the court, therefore, is, whether the
descendants of such slaves, when they shall be emancipated, or
who are born of parents who had become free before their birth,
are citizens of a State, in the sense in which the word citizen
is used in the Constitution of the United States. And this being
the only matter in dispute on the pleadings, the court must be
understood as speaking in this opinion of that class only, that
is, of those persons who are the descendants of Africans who were
imported into this country, and sold as slaves.

The situation of this population was altogether unlike that
of the Indian race. The latter, it is true, formed no part of the
colonial communities, and never amalgamated with them in social
connections or in government. But although they were uncivilized,
they were yet a free and independent people, associated together
in nations or tribes, and governed by their own laws. Many of
these political communities were situated in territories to which
the white race claimed the ultimate right of dominion. But that
claim was acknowledged to be subject to the right of the Indians
to occupy it as long as they thought proper, and neither the
English nor colonial Governments claimed or exercised any
dominion over the tribe or nation by whom it was occupied, nor
claimed the right to the possession of the territory, until the
tribe or nation consented to cede it. These Indian Governments
were regarded and treated as foreign Governments, as much so as
if an ocean had separated the red man from the white; and their
freedom has constantly been acknowledged, from the time of the
first emigration to the English colonies to the present day, by
the different Governments which succeeded each other. Treaties
have been negotiated with them, and their alliance sought for in
war; and the people who compose these Indian political
communities have always been treated as foreigners not living
under our Government. It is true that the course of events has
brought the Indian tribes within the limits of the United States
under subjection to the white race; and it has been found
necessary, for their sake as well as our own, to regard them as
in a state of pupilage, and to legislate to a certain extent over
them and the territory they occupy. But they may, without doubt,
like the subjects of any other foreign Government, be naturalized
by the authority of Congress, and become citizens of a State, and
of the United States; and if an individual should leave his
nation or tribe, and take up his abode among the white
population, he would be entitled to all the rights and privileges
which would belong to an emigrant from any other foreign people.

We proceed to examine the case as presented by the
pleadings.

The words "people of the United States" and "citizens" are
synonymous terms, and mean the same thing. They both describe the
political body who, according to our republican institutions,
form the sovereignty, and who hold the power and conduct the
Government through their representatives. They are what we
familiarly call the "sovereign people," and every citizen is one
of this people, and a constituent member of this sovereignty. The
question before us is, whether the class of persons described in
the plea in abatement compose a portion of this people, and are
constituent members of this sovereignty? We think they are not,
and that they are not included, and were not intended to be
included, under the word "citizens" in the Constitution, and can
therefore claim none of the rights and privileges which that
instrument provides for and secures to citizens of the United
States. On the contrary, they were at that time considered as a
subordinate and inferior class of beings, who had been subjugated
by the dominant race, and, whether emancipated or not, yet
remained subject to their authority, and had no rights or
privileges but such as those who held the power and the
Government might choose to grant them.

It is not the province of the court to decide upon the
justice or injustice, the policy or impolicy, of these laws. The
decision of that question belonged to the political or law-making
power; to those who formed the sovereignty and framed the
Constitution. The duty of the court is, to interpret the
instrument they have framed, with the best lights we can obtain
on the subject, and to administer it as we find it, according to
its true intent and meaning when it was adopted.

In discussing this question, we must not confound the rights
of citizenship which a State may confer within its own limits,
and the rights of citizenship as a member of the Union. It does
not by any means follow, because he has all the rights and
privileges of a citizen of a State, that he must be a citizen of
the United States. He may have all of the rights and privileges
of the citizen of a State, and yet not be entitled to the rights
and privileges of a citizen in any other State. For, previous to
the adoption of the Constitution of the United States, every
State had the undoubted right to confer on whomsoever it pleased
the character of citizen, and to endow him with all its rights.
But this character of course was confined to the boundaries of
the State, and gave him no rights or privileges in other States
beyond those secured to him by the laws of nations and the comity
of States. Nor have the several States surrendered the power of
conferring these rights and privileges by adopting the
Constitution of the United States. Each State may still confer
them upon an alien, or any one it thinks proper, or upon any
class or description of persons; yet he would not be a citizen in
the sense in which that word is used in the Constitution of the
United States, nor entitled to sue as such in one of its courts,
nor to the privileges and immunities of a citizen in the other
States. The rights which he would acquire would be restricted to
the State which gave them. The Constitution has conferred on
Congress the right to establish an uniform rule of
naturalization, and this right is evidently exclusive, and has
always been held by this court to be so. Consequently, no State,
since the adoption of the Constitution, can be naturalizing an
alien, invest him with the rights and privileges secured to a
citizen of a State under the Federal Government, although, so far
as the State alone was concerned, he would undoubtedly be
entitled to the rights of a citizen, and clothed with all the
rights and immunities which the Constitution and laws of the
State attached to that character.

It is very clear, therefore, that no State can, by any act
or law of its own, passed since the adoption of the Constitution,
introduce a new member into the political community created by
the Constitution of the United States. It cannot make him a
member of this community by making him a member of its own. And
for the same reason it cannot introduce any person, or
description of persons, who were not intended to be embraced in
this new political family, which the Constitution brought into
existence, but were intended to be excluded from it.

The question then arises, whether the provisions of the
Constitution, in relation to the personal rights and privileges
to which the citizen of a State should be entitled, embraced the
negro African race, at that time in this country, or who might
afterwards be imported, who had then or should afterwards be made
free in any State; and to put it in the power of a single State
to make him a citizen of the United States, and endue him with
the full rights of citizenship in every other State without their
consent? Does the Constitution of the United States act upon him
whenever he shall be made free under the laws of a State, and
raised there to the rank of a citizen, and immediately cloth him
with all the privileges of a citizen in every other State, and in
its own courts?

The court thinks the affirmative of these propositions
cannot be maintained. And if it cannot, the plaintiff in error
could not be a citizen of the State of Missouri, within the
meaning of the Constitution of the United States, and,
consequently, was not entitled to sue in its courts.

It is true, every person, and every class and description of
persons, who were at the time of the adoption of the Constitution
recognized as citizens in the several States, became also
citizens of this new political body; but none other; it was
formed by them, and for them and their posterity, but for no one
else. And the personal rights and privileges guarantied to
citizens of this new sovereignty were intended to embrace those
only who were then members of the several State communities, or
who should afterwards by birthright or otherwise become members,
according to the provisions of the Constitution and the
principles on which it was founded. It was the union of those who

were at that time members of distinct and separate political
communities into one political family, whose power, for certain
specified purposes, was to extend over the whole territory of the
United States. And it gave to each citizen rights and privileges
outside of his State which he did not before possess, and placed
him in every other State upon a perfect equality with its own
citizens as to rights of person and rights of property; it made
him a citizen of the United States.

It becomes necessary, therefore, to determine who were
citizens of the several States when the Constitution was adopted.
And in order to do this, we must recur to the Governments and
institutions of the thirteen colonies, when they separated from
Great Britain and formed new sovereignties, and took their places
in the family of independent nations. We must inquire who, at
that time, were recognized as the people or citizens of a State,
whose rights and liberties had been outraged by the English
Government; and who declared their independence, and assumed the
powers of Government to defend their rights by force of arms.

In the opinion of the court, the legislation and histories
of the times, and the language used in the Declaration of
Independence, show, that neither the class of persons who had
been imported as slaves, nor their descendants, whether they had
become free or not, were then acknowledged as a part of the
people, nor intended to be included in the general words used in
that memorable instrument.

It is difficult at this day to realize the state of public
opinion in relation to that unfortunate race, which prevailed in
the civilized and enlightened portions of the world at the time
of the Declaration of Independence, and when the Constitution of
the United States was framed and adopted. But the public history
of every European nation displays it in a manner too plain to be
mistaken.

They had for more than a century before been regarded as
beings of an inferior order, and altogether unfit to associate
with the white race, either in social or political relations; and
so far inferior, that they had no rights which the white man was
bound to respect; and that the negro might justly and lawfully be
reduced to slavery for his benefit. He was bought and sold, and
treated as an ordinary article of merchandise and traffic,
whenever a profit could be made by it. This opinion was at that
time fixed and universal in the civilized portion of the white
race. It was regarded as an axiom in morals as well as in
politics, which no one thought of disputing, or supposed to be
open to dispute; and men in every grade and position in society
daily and habitually acted upon it in their private pursuits, as
well as in matters of public concern, without doubting for a
moment the correctness of this opinion.

And in no nation was this opinion more firmly fixed or more
uniformly acted upon than by the English Government and English
people. They not only seized them on the coast of Africa, and
sold them or held them in slavery for their own use; but they
took them as ordinary articles of merchandise to every country
where they could make a profit on them, and were far more
extensively engaged in this commerce than any other nation in the
world.

The opinion thus entertained and acted upon in England was
naturally impressed upon the colonies they founded on this side
of the Atlantic. And, accordingly, a negro of the African race
was regarded by them as an article of property, and held, and
bought and sold as such, in every one of the thirteen colonies
which united in the Declaration of Independence, and afterwards
formed the Constitution of the United States. The slaves were
more or less numerous in the different colonies, as slave labor
was found more or less profitable. But no one seems to have
doubted the correctness of the prevailing opinion of the time.

The legislation of the different colonies furnishes positive
and indisputable proof of this fact.

It would be tedious, in this opinion, to enumerate the
various laws they passed upon this subject. It will be
sufficient, as a sample of the legislation which then generally
prevailed throughout the British colonies, to give the laws of
two of them; one being still a large slaveholding State, and the
other the first State in which slavery ceased to exist.

The province of Maryland, in 1717, (ch. 13, s. 5,) passed a
law declaring "that if any free negro or mulatto intermarry with
any white woman, or if any white man shall intermarry with any
negro or mulatto woman, such negro or mulatto shall become a
slave during life, excepting mulattoes born of white women, who,
for such intermarriage, shall only become servants for seven
years, to be disposed of as the justices of the county court,
where such marriage so happens, shall think fit; to be applied by
them towards the support of a public school within the said
county. And any white man or white woman who shall intermarry as
aforesaid, with any negro or mulatto, such white man or white
woman shall become servants during the term of seven years, and
shall be disposed of by the justices as aforesaid, and be applied
to the uses aforesaid." The other colonial law to which we refer
was passed by Massachusetts in 1705, (chap, 6.) It is entitled
"An act for the better preventing of a spurious and mixed issue,"
&c.; and it provides, that "if any negro or mulatto shall presume
to smite or strike any person of the English or other Christian
nation, such negro or mulatto shall be severely whipped, at the
discretion of the justices before whom the offender shall be
convicted."

And "that none of her Majesty's English or Scottish
subjects, nor of any other Christian nation, within this
province, shall contract matrimony with any negro or mulatto; nor
shall any person, duly authorized to solemnize marriage, presume
to join any such in marriage, on pain of forfeiting the sum of
fifty pounds; one moiety thereof to her Majesty, for and towards
the support of the Government within this province, and the other
moiety to him or them that shall inform and sue for the same, in
any of her Majesty's courts of record within the province, by
bill, plaint, or information."

We give both of these laws in the words used by the
respective legislative bodies, because the language in which they
are framed, as well as the provisions contained in them, show,
too plainly to be misunderstood, the degraded condition of this
unhappy race. They were still in force when the Revolution began,
and are a faithful index to the state of feeling towards the
class of persons of whom they speak, and of the position they
occupied throughout the thirteen colonies, in the eyes and
thoughts of the men who framed the Declaration of Independence
and established the State Constitutions and Governments. They
show that a perpetual and impassable barrier was intended to be
erected between the white race and the one which they had reduced
to slavery, and governed as subjects with absolute and despotic
power, and which they then looked upon as so far below them in
the scale of created beings, that intermarriages between white
persons and negroes or mulattoes were regarded as unnatural and
immoral, and punished as crimes, not only in the parties, but in
the person who joined them in marriage. And no distinction in
this respect was made between the free negro or mulatto and the
slave, but this stigma, of the deepest degradation, was fixed
upon the whole race.

We refer to these historical facts for the purpose of
showing the fixed opinions concerning that race, upon which the
statesmen of that day spoke and acted. It is necessary to do
this, in order to determine whether the general terms used in the
Constitution of the United States, as to the rights of man and
the rights of the people, was intended to include them, or to
give to them or their posterity the benefit of any of its
provisions.

The language of the Declaration of Independence is equally
conclusive:

It begins by declaring that, "when in the course of human
events it becomes necessary for one people to dissolve the
political bands which have connected them with another, and to
assume among the powers of the earth the separate and equal
station to which the laws of nature and nature's God entitle
them, a decent respect for the opinions of mankind requires that
they should declare the causes which impel them to the
separation."

It then proceeds to say: "We hold these truths to be
self-evident: that all men are created equal; that they are
endowed by their Creator with certain unalienable rights; that
among them is life, liberty, and the pursuit of happiness; that
to secure these rights, Governments are instituted, deriving
their just powers from the consent of the governed."

The general words above quoted would seem to embrace the
whole human family, and if they were used in a similar instrument
at this day would be so understood. But it is too clear for
dispute, that the enslaved African race were not intended to be
included, and formed no part of the people who framed and adopted
this declaration; for if the language, as understood in that day,
would embrace them, the conduct of the distinguished men who
framed the Declaration of Independence would have been utterly
and flagrantly inconsistent with the principles they asserted;
and instead of the sympathy of mankind, to which they so
confidently appeared, they would have deserved and received
universal rebuke and reprobation.

Yet the men who framed this declaration were great men --
high in literary acquirements -- high in their sense of honor,
and incapable of asserting principles inconsistent with those on
which they were acting. They perfectly understood the meaning of
the language they used, and how it would be understood by others;
and they knew that it would not in any part of the civilized
world be supposed to embrace the negro race, which, by common
consent, had been excluded from civilized Governments and the
family of nations, and doomed to slavery. They spoke and acted
according to the then established doctrines and principles, and
in the ordinary language of the day, no one misunderstood them.
The unhappy black race were separated from the white by indelible
marks, and laws long before established, and were never thought
of or spoken of except as property, and when the claims of the
owner or the profit of the trader were supposed to need
protection.

This state of public opinion had undergone no change when
the Constitution was adopted, as is equally evident from its
provisions and language.

The brief preamble sets forth by whom it was formed, for
what purposes, and for whose benefit and protection. It declares
that it is formed by the people of the United States; that is to
say, by those who were members of the different political
communities in the several States; and its great object is
declared to be to secure the blessings of liberty to themselves
and their posterity. It speaks in general terms of the people of
the United States, and of citizens of the several States, when it
is providing for the exercise of the powers granted or the
privileges secured to the citizen. It does not define what
description of persons are intended to be included under these
terms, or who shall be regarded as a citizen and one of the
people. It uses them as terms so well understood, that no further
description or definition was necessary.

But there are two clauses in the Constitution which point
directly and specifically to the negro race as a separate class
of persons, and show clearly that they were not regarded as a
portion of the people or citizens of the Government then formed.

One of these clauses reserves to each of the thirteen States
the right to import slaves until the year 1808, if it thinks
proper. And the importation which it thus sanctions was
unquestionably of persons of the race of which we are speaking,
as the traffic in slaves in the United States had always been
confined to them. And by the other provision the States pledge
themselves to each other to maintain the right of property of the
master, by delivering up to him any slave who may have escaped
from his service, and be found within their respective
territories. By the first above-mentioned clause, therefore, the
right to purchase and hold this property is directly sanctioned
and authorized for twenty years by the people who framed the
Constitution. And by the second, they pledge themselves to
maintain and uphold the right of the master in the manner
specified, as long as the Government they then formed should
endure. And these two provisions show, conclusively, that neither
the description of persons therein referred to, not their
descendants, were embraced in any of the other provisions of the
Constitution; for certainly these two clauses were not intended
to confer on them or their posterity the blessings of liberty, or
any of the personal rights so carefully provided for the citizen.

No one of that race had ever migrated to the United States
voluntarily; all of them had been brought here as articles of
merchandise. The number that had been emancipated at that time
were but few in comparison with those held in slavery; and they
were identified in the public mind with the race to which they
belonged, and regarded as a part of the slave population rather
than the free. It is obvious that they were not even in the minds
of the framers of the Constitution when they were conferring
special rights and privileges upon the citizens of a State in
every other part of the Union.

Indeed, when we look to the condition of this race in the
several States at the time, it is impossible to believe that
these rights and privileges were intended to be extended to them.

It is very true, that in that portion of the Union where the
labor of the negro race was found to be unsuited to the climate
and unprofitable to the master, but few slaves were held at the
time of the Declaration of Independence; and when the
Constitution was adopted, it had entirely worn out in one of
them, and measures had been taken for its gradual abolition in
several others. But this change had not been produced by any
change of opinion in relation to this race; but because it was
discovered, from experience, that slave labor was unsuited to the
climate and productions of these States: for some of the States,
where it had ceased or nearly ceased to exist, were actively
engaged in the slave trade, procuring cargoes on the coast of
Africa, and transporting them for sale to those parts of the
Union where their labor was found to be profitable, and suited to
the climate and productions. And this traffic was openly carried
on, and fortunes accumulated by it, without reproach from the
people of the States where they resided. And it can hardly be
supposed that, in the States where it was then countenances in
its worst form -- that is, in the seizure and transportation --
the people could have regarded those who were emancipated as
entitled to equal rights with themselves.

And we may here again refer, in support of this proposition,
to the plain and unequivocal language of the laws of the several
States, some passed after the Declaration of Independence and
before the Constitution was adopted, and some since the
Government went into operation.

We need not refer, on this point, particularly to the laws
of the present slaveholding States. Their statute books are full
of provisions in relation to this class, in the same spirit with
the Maryland law which we have before quoted. They have continued
to treat them as an inferior class, and to subject them to strict
police regulations, drawing a broad line of distinction between
the citizen and the slave races, and legislating in relation to
them upon the same principle which prevailed at the time of the
Declaration of Independence. As related to these States, it is
too plain for argument, that they have never been regarded as a
part of the people or citizens of the State, nor supposed to
possess any political rights which the dominant race might not
withhold or grant at their pleasure. And as long ago as 1822, the
Court of Appeals of Kentucky decided that free negroes and
mulattoes were not citizens within the meaning of the
Constitution of the United States; and the correctness of this
decision is recognized, and the same doctrine affirmed, in 1
Meigs's Tenn. Reports, 331.

And if we turn to the legislation of the States where
slavery had worn out, or measures taken for its speedy abolition,
we shall find the same opinions and principles equally fixed and
equally acted upon.

Thus, Massachusetts, in 1786, passed a law similar to the
colonial one of which we have spoken. The law of 1786, like the
law of 1705, forbids the marriage of any white person with any
negro, Indian, or mulatto, and inflicts a penalty of fifty pounds
upon any one who shall join them in marriage; and declares all
such marriages absolutely null and void, and degrades thus the
unhappy issue of the marriage by fixing upon it the stain of
bastardy. And this mark of degradation was renewed, and again
impressed upon the race in the careful and deliberate preparation
of their revised code published in 1836. This code forbids any
person from joining in marriage any white person with any Indian,
negro, or mulatto, and subjects the party who shall offend in
this respect, to imprisonment, not exceeding six months, in the
common jail, or to hard labor, and to a fine of not less than
fifty nor more than two hundred dollars; and, like the law of
1786, it declares the marriage to be absolutely null and void. It
will be seen that the punishment is increased by the code upon
the person who shall marry them, by adding imprisonment to a
pecuniary penalty.

So, too, in Connecticut. We refer more particularly to the
legislation of this State, because it was not only among the
first to put an end to slavery within its own territory, but was
the first to fix a mark of reprobation upon the African slave
trade. The law last mentioned was passed in October, 1788, about
nine months after the State had ratified and adopted the present
Constitution of the United States; and by that law it prohibited
its own citizens, under severe penalties, from engaging in the
trade, and declared all policies of insurance on the vessel or
cargo made in the State to be null and void. But, up to the time
of the adoption of the Constitution, there is nothing in the
legislation of the State indicating any change of opinion as to
the relative rights and position of the white and black races in
this country, or indicating that it meant to place the latter,
when free, upon a level with its citizens. And certainly nothing
which would have led the slaveholding States to suppose, that
Connecticut designed to claim for them, under the new
Constitution, the equal rights and privileges and rank of
citizens in every other State.

The first step taken by Connecticut upon this subject was as
early as 1774, when it passed an act forbidding the further
importation of slaves into the State. But the section containing
the prohibition is introduced by the following preamble:

"And whereas the increase of slaves in this State is
injurious to the poor, and inconvenient."

This recital would appear to have been carefully introduced,
in order to prevent any misunderstanding of the motive which
induced the Legislature to pass the law, and places it distinctly
upon the interest and convenience of the white population --
excluding the inference that it might have been intended in any
degree for the benefit of the other.

And in the act of 1784, by which the issue of slaves, born
after the time therein mentioned, were to be free at a certain
age, the section is again introduced by a preamble assigning a
similar motive for the act. It is in these words:

"Whereas sound policy requires that the abolition of slavery
should be effected as soon as may be consistent with the rights
of individuals, and the public safety and welfare" -- showing
that the right of property in the master was to be protected, and
that the measure was one of policy, and to prevent the injury and
inconvenience, to the whites, of a slave population in the State.

And still further pursuing its legislation, we find that in
the same statute passed in 1774, which prohibited the further
importation of slaves into the State, there is also a provision
by which any negro, Indian, or mulatto servant, who was found
wandering out of the town or place to which he belonged, without
a written pass such as is therein described, was made liable to
be seized by any one, and taken before the next authority to be
examined and delivered up to his master -- who was required to
pay the charge which had accrued thereby. And a subsequent
section of the same law provides, that if any free negro shall
travel without such pass, and shall be stopped, seized, or taken
up, he shall pay all charges arising thereby. And this law was in
full operation when the Constitution of the United States was
adopted, and was not repealed till 1797. So that up to that time
free negroes and mulattoes were associated with servants and
slaves in the police regulations established by the laws of the
State.

And again, in 1833, Connecticut passed another law, which
made it penal to set up or establish any school in that State for
the instruction of persons of the African race not inhabitants of
the State, or to instruct or teach in any such school or
institution, or board or harbor for that purpose, any such
person, without the previous consent in writing of the civil
authority of the town in which such school or institution might
be.

And it appears by the case of Crandall v. The State,
reported in 10 Conn. Rep., 340, that upon an information filed
against Prudence Crandall for a violation of this law, one of the
points raised in the defence was, that the law was a violation of
the Constitution of the United States; and that the persons
instructed, although of the African race, were citizens of other

States, and therefore entitled to the rights and privileges of
citizens in the State of Connecticut. But Chief Justice Dagget,
before whom the case was tried, held, that persons of that
description were not citizens of a State, within the meaning of
the word citizen in the Constitution of the United States, and
were not therefore entitled to the privileges and immunities of
citizens in other States.

The case was carried up to the Supreme Court of Errors of
the State, and the question fully argued there. But the case went
off upon another point, and no opinion was expressed on this
question.

We have made this particular examination into the
legislative and judicial action of Connecticut, because, from the
early hostility it displayed to the slave trade on the coast of
Africa, we may expect to find the laws of that State as lenient
and favorable to the subject race as those of any other State in
the Union; and if we find that at the time the Constitution was
adopted, they were not even there raised to the rank of citizens,
but were still held and treated as property, and the laws
relating to them passed with reference altogether to the interest
and convenience of the white race, we shall hardly find them
elevated to a higher rank anywhere else.

A brief notice of the laws of two other States, and we shall
pass on to other considerations.

By the laws of New Hampshire, collected and finally passed
in 1815, no one was permitted to be enrolled in the militia of
the State, but free white citizens; and the same provision is
found in a subsequent collection of the laws, made in 1855.
Nothing could more strongly mark the entire repudiation of the
African race. The alien is excluded, because, being born in a
foreign country, he cannot be a member of the community until he
is naturalized. But why are the African race, born in the State,
not permitted to share in one of the highest duties of the
citizen? The answer is obvious; he is not, by the institutions
and laws of the State, numbered among its people. He forms no
part of the sovereignty of the State, and is not therefore called
on to uphold and defend it.

Again, in 1822, Rhode Island, in its revised code, passed a
law forbidding persons who were authorized to join persons in
marriage, from joining in marriage any white person with any
negro, Indian, or mulatto, under the penalty of two hundred
dollars, and declaring all such marriages absolutely null and
void; and the same law was again re-enacted in its revised code
of 1844. So that, down to the last-mentioned period, the
strongest mark of inferiority and degradation was fastened upon
the African race in that State.

It would be impossible to enumerate and compress in the
space usually allotted to an opinion of a court, the various
laws, marking the condition of this race, which were passed from
time to time after the Revolution, and before and since the
adoption of the Constitution of the United States. In addition to
those already referred to, it is sufficient to say, that
Chancellor Kent, whose accuracy and research no one will
question, states in the sixth edition of his Commentaries,
(published in 1848, 2 vol., 258, note b,) that in no part of the
country except Maine, did the African race, in point of fact,
participate equally with the whites in the exercise of civil and
political rights.

The legislation of the States therefore shows, in a manner
not to be mistaken, the inferior and subject condition of that
race at the time the Constitution was adopted, and long
afterwards, throughout the thirteen States by which that
instrument was framed; and it is hardly consistent with the
respect due to these States, to suppose that they regarded at
that time, as fellow-citizens and members of the sovereignty, a
class of beings whom they had thus stigmatized; whom, as we are
bound, out of respect to the State sovereignties, to assume they
had deemed it just and necessary thus to stigmatize, and upon
whom they had impressed such deep and enduring marks of
inferiority and degradation; or, that when they met in convention
to form the Constitution, they looked upon them as a portion of
their constituents, or designed to include them in the provisions
so carefully inserted for the security and protection of the
liberties and rights of their citizens. It cannot be supposed
that they intended to secure to them rights, and privileges, and
rank, in the new political body throughout the Union, which every
one of them denied within the limits of its own dominion. More
especially, it cannot be believed that the large slaveholding
States regarded them as included in the word citizens, or would
have consented to a Constitution which might compel them to
receive them in that character from another State. For if they
were so received, and entitled to the privileges and immunities
of citizens, it would exempt them from the operation of the
special laws and from the police regulations which they
considered to be necessary for their own safety. It would give to
persons of the negro race, who were recognized as citizens in any
one State of the Union, the right to enter every other State
whenever they pleased, singly or in companies, without pass or
passport, and without obstruction, to sojourn there as long as
they pleased, to go where they pleased at every hour of the day
or night without molestation, unless they committed some
violation of law for which a white man would be punished; and it
would give them the full liberty of speech in public and in
private upon all subjects upon which its own citizens might
speak; to hold public meetings upon political affairs, and to
keep and carry arms wherever they went.
And all of this would be done in the face of
the subject race of the same color, both free and slaves, and
inevitably producing discontent and insubordination among them,
and endangering the peace and safety of the State.

It is impossible, it would seem, to believe that the great
men of the slaveholding States, who took so large a share in
framing the Constitution of the United States, and exercised so
much influence in procuring its adoption, could have been so
forgetful or regardless of their own safety and the safety of
those who trusted and confided in them.

Besides, this want of foresight and care would have been
utterly inconsistent with the caution displayed in providing for
the admission of new members into this political family. For,
when they gave to the citizens of each State the privileges and
immunities of citizens in the several States, they at the same
time took from the several States the power of naturalization,
and confined that power exclusively to the Federal Government. No
State was willing to permit another State to determine who should
or should not be admitted as one of its citizens, and entitled to
demand equal rights and privileges with their own people, within
their own territories. The right of naturalization was therefore,
with one accord, surrendered by the States, and confided to the
Federal Government. And this power granted to Congress to
establish an uniform rule of naturalization is, by the
well-understood meaning of the word, confined to persons born in
a foreign country, under a foreign Government. It is not a power
to raise to the rank of a citizen any one born in the United
States, who, from birth or parentage, by the laws of the country,
belongs to an inferior and subordinate class. And when we find
the States guarding themselves from the indiscreet or improper
admission by other States of emigrants from other countries, by
giving the power exclusively to Congress, we cannot fail to see
that they could never have left with the States a much more
important power -- that is, the power of transforming into
citizens a numerous class of persons, who in that character would
be much more dangerous to the peace and safety of a large portion
of the Union, than the few foreigners one of the States might
improperly naturalize. The Constitution upon its adoption
obviously took from the States all power by any subsequent
legislation to introduce as a citizen into the political family
of the United States any one, no matter where he was born, or
what might be his character or condition; and it gave to Congress
the power to confer this character upon those only who were born
outside of the dominions of the United States. And no law of a
State, therefore, passed since the Constitution was adopted, can
give any right of citizenship outside of its own territory.

A clause similar to the one in the Constitution, in relation
to the rights and immunities of citizens of one State in the
other States, was contained in the Articles of Confederation. But
there is a difference of language, which is worthy of note. The
provision in the Articles of Confederation was, "that the free
inhabitants of each of the States, paupers, vagabonds, and
fugitives from justice, excepted, should be entitled to all the
privileges and immunities of free citizens in the several
States."

It will be observed, that under this Confederation, each
State had the right to decide for itself, and in its own
tribunals, whom it would acknowledge as a free inhabitant of
another State. The term free inhabitant, in the generality of its
terms, would certainly include one of the African race who had
been manumitted. But no example, we think, can be found of his
admission to all the privileges of citizenship in any State of
the Union after these Articles were formed, and while they
continued in force. And, notwithstanding the generality of the
words "free inhabitants," it is very clear that, according to
their accepted meaning in that day, they did not include the
African race, whether free or not: for the fifth section of the
ninth article provides that Congress should have the power "to
agree upon the number of land forces to be raised, and to make
requisitions from each State for its quota in proportion to the
number of white inhabitants in such State, which requisition
should be binding."

Words could hardly have been used which more strongly mark
the line of distinction between the citizen and the subject; the
free and the subjugated races. The latter were not even counted
when the inhabitants of a State were to be embodied in proportion
to its numbers from the general defence. And it cannot for a
moment be supposed, that a class of persons thus separated and
rejected from those who formed the sovereignty of the States,
were yet intended to be included under the words "free
inhabitants," in the preceding article, to whom privileges and
immunities were so carefully secured in every State.

But although this clause of the Articles of Confederation is
the same in principle with that inserted in the Constitution, yet
the comprehensive word inhabitant, which might be construed to
include an emancipated slave, is omitted; and the privilege is
confined to citizens of the State. And this alteration in words
would hardly have been made, unless a different meaning was
intended to be conveyed, or a possible doubt removed. The just
and fair inference is, that as this privilege was about to be
placed under the protection of the General Government, and the
words expounded by its tribunals, and all power in relation to it
taken from the State and its courts, it was deemed prudent to
describe with precision and caution the persons to whom this high
privilege was given -- and the word citizen was on that account
substituted for the words free inhabitant. The word citizen
excluded, and no doubt intended to exclude, foreigners who had
not become citizens of some one of the States when the
Constitution was adopted; and also every description of persons
who were not fully recognized as citizens in the several States.
This, upon any fair construction of the instruments to which we
have referred, was evidently the object and purpose of this
change of words.

To all this mass of proof we have still to add, that
Congress has repeatedly legislated upon the same construction of
the Constitution that we have given. Three laws, two of which
were passed almost immediately after the Government went into
operation, will be abundantly sufficient to show this. The two
first are particularly worthy of notice, because many of the men
who assisted in framing the Constitution, and took an active part
in procuring its adoption, were then in the halls of legislation,
and certainly understood what they meant when they used the words
"people of the United States" and "citizen" in that
well-considered instrument.

The first of these acts is the naturalization law, which was
passed at the second session of the first Congress, March 26,
1790, and confines the right of becoming citizens "to aliens
being free white persons."

Now, the Constitution does not limit the power of Congress
in this respect to white persons. And they may, if they think
proper, authorize the naturalization of any one, of any color,
who was born under allegiance to another Government. But the
language of the law above quoted, shows that citizenship at that
time was perfectly understood to be confined to the white race;
and that they alone constituted the sovereignty in the
Government.

Congress might, as we before said, have authorized the
naturalization of Indians, because they were aliens and
foreigners. But, in their then untutored and savage state no one
would have thought of admitting them as citizens in a civilized
community. And, moreover, the atrocities they had but recently
committed, when they were the allies of Great Britain in the
Revolutionary war, were yet fresh in the recollection of the
people of the United States, and they were even then guarding
themselves against the threatened renewal of Indian hostilities.
No one supposed then that any Indian would ask for, or was
capable of enjoying, the privileges of an American citizen, and
the word white was not used with any particular reference to
them.

Neither was it used with any reference to the African race
imported into or born in this country; because Congress had no
power to naturalize them, and therefore there was no necessity
for using particular words to exclude them.

It would seem to have been used merely because it followed
out the line of division which the Constitution has drawn between
the citizen race, who formed and held the Government, and the
African race, which they held in subjection and slavery, and
governed at their own pleasure.

Another of the early laws of which we have spoken, is the
first militia law, which was passed in 1792, at the first session
of the second Congress. The language of this law is equally plain
and significant with the one just mentioned. It directs that
every "free able-bodied white male citizen" shall be enrolled in
the militia. The word white is evidently used to exclude the
African race, and the word "citizen" to exclude unnaturalized
foreigners; the latter forming no part of the sovereignty, owing
it no allegiance, and therefore under no obligation to defend it.
The African race, however, born in the country, did owe
allegiance to the Government, whether they were slave or free;
but it is repudiated, and rejected from the duties and
obligations of citizenship in marked language.

The third act to which we have alluded is even still more
decisive; it was passed as late as 1813, (2 Stat., 809,) and it
provides: "That from and after the termination of the war in
which the United States are now engaged with Great Britain, it
shall not be lawful to employ, on board of any public or private
vessels of the United States, any person or persons except
citizens of the United States, or persons of color, natives of
the United States.

Here the line of distinction is drawn in express words
Persons of color, in the judgment of Congress, were not included
in the word citizens, and they are described as another and
different class of persons, and authorized to be employed, if
born in the United States.

And even as late as 1820, (chap. 104, sec. 8,) in the
charter to the city of Washington, the corporation is authorized
"to restrain and prohibit the nightly and other disorderly
meetings of slaves, free negroes, and mulattoes," thus
associating them together in its legislation; and after
prescribing the punishment that may be inflicted on the slaves,
proceeds in the following words: "And to punish such free negroes
and mulattoes by penalties not exceeding twenty dollars for any
one offence; and in case of the inability of any such free negro
or mulatto to pay any such penalty and cost thereon, to cause him
or her to be confined to labor for any time not exceeding six
calendar months." And in a subsequent part of the same section,
the act authorizes the corporation "to prescribe the terms and
conditions upon which free negroes and mulattoes may reside in
the city."

This law, like the laws of the States, shows that this
class of persons were governed by special legislation directed
expressly to them, and always connected with provisions for the
government of slaves, and not with those for the government of
free white citizens. And after such an uniform course of
legislation as we have stated, by the colonies, by the States,
and by Congress, running through a period of more than a century,
it would seem that to call persons thus marked and stigmatized,
"citizens" of the United States, "fellow-citizens," a constituent
part of the sovereignty, would be an abuse of terms, and not
calculated to exalt the character of an American citizen in the
eyes of other nations.

The conduct of the Executive Department of the Government
has been in perfect harmony upon this subject with this course of
legislation. The question was brought officially before the late
William Wirt, when he was the Attorney General of the United
States, in 1821, and he decided that the words "citizens of the
United States" were used in the acts of Congress in the same
sense as in the Constitution; and that free persons of color were
not citizens, within the meaning of the Constitution and laws;
and this opinion has been confirmed by that of the late Attorney
General, Caleb Cushing, in a recent case, and acted upon by the
Secretary of State, who refused to grant passports to them as
"citizens of the United States."

But it is said that a person may be a citizen, and entitled
to that character, although he does not possess all the rights
which may belong to other citizens; as, for example, the right to
vote, or to hold particular offices; and that yet, when he goes
into another State, he is entitled to be recognized there as a
citizen, although the State may measure his rights by the rights
which it allows to persons of a like character or class resident
in the State, and refuse to him the full rights of citizenship.

This argument overlooks the language of the provision in the
Constitution of which we are speaking.

Undoubtedly, a person may be a citizen, that is, a member of
the community who form the sovereignty, although he exercises no
share of the political power, and is incapacitated from holding
particular offices. Women and minors, who form a part of the
political family, cannot vote; and when a property qualification
is required to vote or hold a particular office, those who have
not the necessary qualification cannot vote or hold the office,
yet they are citizens.

So, too, a person may be entitled to vote by the law of the
State, who is not a citizen even of the State itself. And in some
of the States of the Union foreigners not naturalized are allowed
to vote. And the State may give the right to free negroes and
mulattoes, but that does not make them citizens of the State, and
still less of the United States. And the provision in the
Constitution giving privileges and immunities in other States,
does not apply to them.

Neither does it apply to a person who, being the citizen of
a State, migrates to another State. For then he becomes subject
to the laws of the State in which he lives, and he is no longer a
citizen of the State from which he removed. And the State in
which he resides may then, unquestionably, determine his status
or condition, and place him among the class of persons who are
not recognized as citizens, but belong to an inferior and subject
race; and may deny him the privileges and immunities enjoyed by
its citizens.

But so far as mere rights of person are concerned, the
provision in question is confined to citizens of a State who are
temporarily in another State without taking up their residence
there. It gives them no political rights in the State, as to
voting or holding office, or in any other respect. For a citizen
of one State has no right to participate in the government of
another. But if he ranks as a citizen in the State to which he
belongs, within the meaning of the Constitution of the United
States, then, whenever he goes into another State, the
Constitution clothes him, as to the rights of person, with all
the privileges and immunities which belong to citizens of the
State. And if persons of the African race are citizens of a
State, and of the United States, they would be entitled to all of
these privileges and immunities in every State, and the State
could not restrict them; for they would hold these privileges and
immunities under the paramount authority of the Federal
Government, and its courts would be bound to maintain and enforce
them, the Constitution and laws of the State to the contrary
notwithstanding. And if the States could limit or restrict them,
or place the party in an inferior grade, this clause of the
Constitution would be unmeaning, and could have no operation; and
would give no rights to the citizen when in another State. He
would have none but what the State itself chose to allow him.
This is evidently not the construction or meaning of the clause
in question. It guaranties rights to the citizen, and the State
cannot withhold them. And these rights are of a character and
would lead to consequences which make it absolutely certain that
the African race were not included under the name of citizens of
a State, and were not in the contemplation of the framers of the
Constitution when these privileges and immunities were provided
for the protection of the citizen in other States.

The case of Legrand v. Darnall (2 Peters, 664) has been
referred to for the purpose of showing that this court has
decided that the descendant of a slave may sue as a citizen in a
court of the United States; but the case itself shows that the
question did not arise and could not have arisen in the case.

It appears from the report, that Darnall was born in
Maryland, and was the son of a white man by one of his slaves,
and his father executed certain instruments to manumit him, and
devised to him some landed property in the State. This property
Darnall afterwards sold to Legrand, the appellant, who gave his
notes for the purchase-money. But becoming afterwards
apprehensive that the appellee had not been emancipated according
to the laws of Maryland, he refused to pay the notes until he
could be better satisfied as to Darnall's right to convey.
Darnall, in the mean time, had taken up his residence in
Pennsylvania, and brought suit on the notes, and recovered
judgment in the Circuit Court for the district of Maryland.

The whole proceeding, as appears by the report, was an
amicable one; Legrand being perfectly willing to pay the money,
if he could obtain a title, and Darnall not wishing him to pay
unless he could make him a good one. In point of fact, the whole
proceeding was under the direction of the counsel who argued the
case for the appellee, who was the mutual friend of the parties,
and confided in by both of them, and whose only object was to
have the rights of both parties established by judicial decision
in the most speedy and least expensive manner.

Legrand, therefore, raised no objection to the jurisdiction
of the court in the suit at law, because he was himself anxious
to obtain the judgment of the court upon his title. Consequently,
there was nothing in the record before the court to show that
Darnall was of African descent, and the usual judgment and award
of execution was entered. And Legrand thereupon filed his bill on
the equity side of the Circuit Court, stating that Darnall was
born a slave, and had not been legally emancipated, and could not
therefore take the land devised to him, nor make Legrand a good
title; and praying an injunction to restrain Darnall from
proceeding to execution on the judgment, which was granted.
Darnall answered, averring in his answer that he was a free man,
and capable of conveying a good title. Testimony was taken on
this point, and at the hearing the Circuit Court was of opinion
that Darnall was a free man and his title good, and dissolved the
injunction and dismissed the bill; and that decree was affirmed
here, upon the appeal of Legrand.

Now, it is difficult to imagine how any question about the
citizenship of Darnall, or his right to sue in that character,
can be supposed to have arisen or been decided in that case. The
fact that he was of African descent was first brought before the
court upon the bill in equity. The suit at law had then passed
into judgment and award of execution, and the Circuit Court, as a
court of law, had no longer any authority over it. It was a valid
and legal judgment, which the court that rendered it had not the
power to reverse or set aside. And unless it had jurisdiction as
a court of equity to restrain him from using its process as a
court of law, Darnall, if he thought proper, would have been at
liberty to proceed on his judgment, and compel the payment of the
money, although the allegations in the bill were true, and he was
incapable of making a title. No other court could have enjoined
him, for certainly no State equity court could interfere in that
way with the judgment of a Circuit Court of the United States.

But the Circuit Court as a court of equity certainly had
equity jurisdiction over its own judgment as a court of law,
without regard to the character of the parties; and had not only
the right, but it was its duty -- no matter who were the parties
in the judgment -- to prevent them from proceeding to enforce it
by execution, if the court was satisfied that the money was not
justly and equitably due. The ability of Darnall to convey did
not depend upon his citizenship, but upon his title to freedom.
And if he was free, he could hold and convey property, by the
laws of Maryland, although he was not a citizen. But if he was by
law still a slave, he could not. It was therefore the duty of the
court, sitting as a court of equity in the latter case, to
prevent him from using its process, as a court of common law, to
compel the payment of the purchase-money, when it was evident
that the purchaser must lose the land. But if he was free, and
could make a title, it was equally the duty of the court not to
suffer Legrand to keep the land, and refuse the payment of the
money, upon the ground that Darnall was incapable of suing or
being sued as a citizen in a court of the United States. The
character or citizenship of the parties had no connection with
the question of jurisdiction, and the matter in dispute had no
relation to the citizenship of Darnall. Nor is such a question
alluded to in the opinion of the court.

Besides, we are by no means prepared to say that there are
not many cases, civil as well as criminal, in which a Circuit
Court of the United States may exercise jurisdiction, although
one of the African race is a party; that broad question is not
before the court. The question with which we are now dealing is,
whether a person of the African race can be a citizen of the
United States, and become thereby entitled to a special
privilege, by virtue of his title to that character, and which,
under the Constitution, no one but a citizen can claim. It is
manifest that the case of Legrand and Darnall has no bearing on
that question, and can have no application to the case now before
the court.

This case, however, strikingly illustrates the consequences
that would follow the construction of the Constitution which
would give the power contended for to a State. It would in effect
give it also to an individual. For if the father of young Darnall
had manumitted him in his lifetime, and sent him to reside in a
State which recognized him as a citizen, he might have visited
and sojourned in Maryland when he pleased, and as long as he
pleased, as a citizen of the United States; and the States
officers and tribunals would be compelled, by the paramount
authority of the Constitution, to receive him and treat him as
one of its citizens, exempt from the laws and police of the State
in relation to a person of that description, and allow him to
enjoy all the rights and privileges of citizenship, without
respect to the laws of Maryland, although such laws were deemed
by it absolutely essential to its own safety.

The only two provisions which point to them and include
them, treat them as property, and make it the duty of the
Government to protect it; no other power, in relation to this
race, is to be found in the Constitution; and as it is a
Government of special, delegated, powers, no authority beyond
these two provisions can be constitutionally exercised. The
Government of the United States had no right to interfere for any
other purpose but that of protecting the rights of the owner,
leaving it altogether with the several States to deal with this
race, whether emancipated or not, as each State may think
justice, humanity, and the interests and safety of society,
require. The States evidently intended to reserve this power
exclusively to themselves.

No one, we presume, supposes that any change in public
opinion or feeling, in relation to this unfortunate race, in the
civilized nations of Europe or in this country, should induce the
court to give to the words of the Constitution a more liberal
construction in their favor than they were intended to bear when
the instrument was framed and adopted. Such an argument would be
altogether inadmissible in any tribunal called on to interpret
it. If any of its provisions are deemed unjust, there is a mode
prescribed in the instrument itself by which it may be amended;
but while it remains unaltered, it must be construed now as it
was understood at the time of its adoption. It is not only the
same in words, but the same in meaning, and delegates the same
powers to the Government, and reserves and secures the same
rights and privileges to the citizen; and as long as it continues
to exist in its present form, it speaks not only in the same
words, but with the same meaning and intent with which it spoke
when it came from the hands of its framers, and was voted on and
adopted by the people of the United States. Any other rule of
construction would abrogate the judicial character of this court,
and make it the mere reflex of the popular opinion or passion of
the day. This court was not created by the Constitution for such
purposes. Higher and graver trusts have been confided to it, and
it must not falter in the path of duty.

What the construction was at that time, we think can hardly
admit of doubt. We have the language of the Declaration of
Independence and of the Articles of Confederation, in addition to
the plain words of the Constitution itself; we have the
legislation of the different States, before, about the time, and
since, the Constitution was adopted; we have the legislation of
Congress, from the time of its adoption to a recent period; and
we have the constant and uniform action of the Executive
Department, all concurring together, and leading to the same
result. And if anything in relation to the construction of the
Constitution can be regarded as settled, it is that which we now
give to the word "citizen" and the word "people."

And upon a full and careful consideration of the subject,
the court is of opinion, that, upon the facts stated in the plea
in abatement, Dred Scott was not a citizen of Missouri within the
meaning of the Constitution of the United States, and not
entitled as such to sue in its courts; and, consequently, that
the Circuit Court had no jurisdiction of the case, and that the
judgment on the plea in abatement is erroneous.

We are aware that doubts are entertained by some of the
members of the court, whether the plea in abatement is legally
before the court upon this writ of error; but if that plea is
regarded as waived, or out of the case upon any other ground, yet
the question as to the jurisdiction of the Circuit Court is
presented on the face of the bill of exception itself, taken by
the plaintiff at the trial; for he admits that he and his wife
were born slaves, but endeavors to make out his title to freedom
and citizenship by showing that they were taken by their owner to
certain places, hereinafter mentioned, where slavery could not by
law exist, and that they thereby became free, and upon their
return to Missouri became citizens of that State.

Now, if the removal of which he speaks did not give them
their freedom, then by his own admission he is still a slave; and
whatever opinions may be entertained in favor of the citizenship
of a free person of the African race, no one supposes that a
slave is a citizen of the State or of the United States. If,
therefore, the acts done by his owner did not make them free
persons, he is still a slave, and certainly incapable of suing in
the character of a citizen.

The principle of law is too well settled to be disputed,
that a court can give no judgment for either party, where it has
no jurisdiction; and if, upon the showing of Scott himself, it
appeared that he was still a slave, the case ought to have been
dismissed, and the judgment against him and in favor of the
defendant for costs, is, like that on the plea in abatement,
erroneous, and the suit ought to have been dismissed by the
Circuit Court for want of jurisdiction in that court.

But, before we proceed to examine this part of the case, it
may be proper to notice an objection taken to the judicial
authority of this court to decide it; and it has been said, that
as this court has decided against the jurisdiction of the Circuit
Court on the plea in abatement, it has no right to examine any
question presented by the exception; and that anything it may say
upon that part of the case will be extra-judicial, and mere
obiter dicta.

This is a manifest mistake; there can be no doubt as to the
jurisdiction of this court to revise the judgment of a Circuit
Court, and to reverse it for any error apparent on the record,
whether it be the error of giving judgment in a case over which
it had no jurisdiction, or any other material error; and this,
too, whether there is a plea in abatement or not.

The objection appears to have arisen from confounding writs
of error to a State court, with writs of error to a Circuit Court
of the United States. Undoubtedly, upon a writ of error to a
State court, unless the record shows a case that gives
jurisdiction, the case must be dismissed for want of jurisdiction
in this court. And if it is dismissed on that ground, we have no
right to examine and decide upon any question presented by the
bill of exceptions, or any other part of the record. But writs of
error to a State court, and to a Circuit Court of the United
States, are regulated by different laws, and stand upon entirely
different principles. And in a writ of error to a Circuit Court
of the United States, the whole record is before this court for
examination and decision; and if the sum in controversy is large
enough to give jurisdiction, it is not only the right, but it is
the judicial duty of the court, to examine the whole case as
presented by the record; and if it appears upon its face that any
material error or errors have been committed by the court below,
it is the duty of this court to reverse the judgment, and remand
the case. And certainly an error in passing a judgment upon the
merits in favor of either party, in a case which it was not
authorized to try, and over which it had no jurisdiction, is as
grave an error as a court can commit.

The plea in abatement is not a plea to the jurisdiction of
this court, but to the jurisdiction of the Circuit Court. And it
appears by the record before us, that the Circuit Court committed
an error, in deciding that it had jurisdiction, upon the facts in
the case, admitted by the pleadings. It is the duty of the
appellate tribunal to correct this error; but that could not be
done by dismissing the case for want of jurisdiction here -- for
that would leave the erroneous judgment in full force, and the
injured party without remedy. And the appellate court therefore
exercises the power for which alone appellate courts are
constituted, by reversing the judgment of the court below for
this error. It exercises its proper and appropriate jurisdiction
over the judgment and proceedings of the Circuit Court, as they
appear upon the record brought up by the writ by error.

The correction of one error in the court below does not
deprive the appellate court of the power of examining further
into the record, and correcting any other material errors which
may have been committed by the inferior court. There is certainly
no rule of law -- nor any practice -- nor any decision of a court
-- which even questions this power in the appellate tribunal. On
the contrary, it is the daily practice of this court, and of all
appellate courts where they reverse the judgment of an inferior
court for error, to correct by its opinions whatever errors may
appear on the record material to the case; and they have always
held it to be their duty to do so where the silence of the court
might lead to misconstruction of future controversy, and the
point has been relied on by either side, and argued before the
court.

In the case before us, we have already decided that the
Circuit Court erred in deciding that it had jurisdiction upon the
facts admitted by the pleadings. And it appears that, in the
further progress of the case, it acted upon the erroneous
principle it had decided on the pleadings, and gave judgment for
the defendant, where, upon the facts admitted in the exception,
it had no jurisdiction.

We are at a loss to understand upon what principle of law,
applicable to appellate jurisdiction, it can be supposed that
this court has not judicial authority to correct the
last-mentioned error, because they had before corrected the
former; or by what process of reasoning it can be made out, that
the error of an inferior court in actually pronouncing judgment
for one of the parties, in a case in which it had no
jurisdiction, cannot be looked into or corrected by this court,
because we have decided a similar question presented in the
pleadings. The last point is distinctly presented by the facts
contained in the plaintiff's own bill of exceptions, which he
himself brings here by this writ of error. It was the point which
chiefly occupied the attention of the counsel on both sides in
the argument -- and the judgment which this court must render
upon both errors is precisely the same. It must, in each of them,
exercise jurisdiction over the judgment, and reverse it for the
errors committed by the court below; and issue a mandate to the
Circuit Court to conform its judgment to the opinion pronounced
by this court, by dismissing the case for want of jurisdiction in
the Circuit Court. This is the constant and invariable practice
of this court, where it reverses a judgment for want of
jurisdiction in the Circuit Court.

It can scarcely be necessary to pursue such a question
further. The want of jurisdiction in the court below may appear
on the record without any plea in abatement. This is familiarly
the case where a court of chancery has exercised jurisdiction in
a case where the plaintiff had a plain and adequate remedy at
law, and it so appears by the transcript when brought here by
appeal. So also where it appears that a court of admiralty has
exercised jurisdiction in a case belonging exclusively to a court
of common law. In these cases there is no plea in abatement. And
for the same reason, and upon the same principles, where the
defect of jurisdiction is patent on the record, this court is
bound to reverse the judgment, although the defendant has not
pleaded in abatement to the jurisdiction of the inferior court.

The cases of Jackson v. Ashton and of Capron v. Van Noorden,
to which we have referred in a previous part of this opinion, are
directly in point. In the last-mentioned case, Capron brought an
action against Van Noorden in a Circuit Court of the United
States, without showing, by the usual averments of citizenship,
that the court had jurisdiction. There was no plea in abatement
put in, and the parties went to trial upon the merits. The court
gave judgment in favor of the defendant with costs. The plaintiff
thereupon brought his writ of error, and this court reversed the
judgment given in favor of the defendant, and remanded the case
with directions to dismiss it, because it did not appear by the
transcript that the Circuit Court had jurisdiction.

The case before us still more strongly imposes upon this
court the duty of examining whether the court below has not
committed an error, in taking jurisdiction and giving a judgment
for costs in favor of the defendant; for in Capron v. Van Noorden
the judgment was reversed, because it did not appear that the
parties were citizens of different States. They might or might
not be. But in this case it does appear that the plaintiff was
born a slave; and if the facts upon which he relies have not made
him free, then it appears affirmatively on the record that he is
not a citizen, and consequently his suit against Sandford was not
a suit between citizens of different States, and the court had no
authority to pass any judgment between the parties. The suit
ought, in this view of it, to have been dismissed by the Circuit
Court, and its judgment in favor of Sandford is erroneous, and
must be reversed.

It is true that the result either way, by dismissal or by a
judgment for the defendant, makes very little, if any, difference
in a pecuniary or personal point of view to either party. But the
fact that the result would be very nearly the same to the parties
in either form of judgment, would not justify this court in
sanctioning an error in the judgment which is patent on the
record, and which, if sanctioned, might be drawn into precedent,
and lead to serious mischief and injustice in some future suit.

We proceed, therefore, to inquire whether the facts relied
on by the plaintiff entitled him to his freedom.

The case, as he himself states it, on the record brought
here by his writ of error, it this:

The plaintiff was a negro salve, belonging to Dr. Emerson,
who was a surgeon in the army of the United States. In the year
1834, he took the plaintiff from the State of Missouri to the
military post at Rock Island, in the State of Illinois, and held
him there as a slave until the month of April or May, 1836. At
the time last mentioned, said Dr. Emerson removed the plaintiff
from said military post at Rock Island to the military post at
Fort Snelling, situate on the west bank of the Mississippi river,
in the Territory known as Upper Louisiana, acquired by the United
States of France, and situate north of the latitude of thirty-six
degrees thirty minutes north, and north of the State of Missouri.
Said Dr. Emerson held the plaintiff in slavery at said Fort
Snelling, from said last-mentioned date until the year 1838.

In the year 1835, Harriet, who is named in the second count
of the plaintiff's declaration, who the negro slave of Major
Taliaferro, who belonged to the army of the United States. In
that year, 1835, said Major Taliaferro took said Harriet to said
Fort Snelling, a military post, situated as hereinbefore stated,
and kept her there as a slave until the year 1836, and then sold
and delivered her as a slave, at said Fort Snelling, unto the
said Dr. Emerson hereinbefore named. Said Dr. Emerson held said
Harriet in slavery at said Fort Snelling until the year 1838.

In the year 1836, the plaintiff and Harriet intermarried, at
Fort Snelling, with the consent of Dr. Emerson, who then claimed
to be their master and owner. Eliza and Lizzie, named in the
third count of the plaintiff's declaration, are the fruit of that
marriage. Eliza is about fourteen years old, and was born on
board the steamboat Gipsey, north of the north line of the State
of Missouri, and upon the river Mississippi. Lizzie is about
seven years old, and was born in the State of Missouri, at the
military post called Jefferson Barracks.

In the year 1838, said Dr. Emerson removed the plaintiff and
said Harriet, and their said daughter Eliza, from said Fort
Snelling to the State of Missouri, where they have ever since
resided.

Before the commencement of this suit, said Dr. Emerson sold
and conveyed the plaintiff, and Harriet, Eliza, and Lizzie, to
the defendant, as slaves, and the defendant has ever since
claimed to hold them, and each of them, as slaves.

In considering this part of the controversy, two questions
arise: 1. Was he, together with his family, free in Missouri by
reason of the stay in the territory of the United States
hereinbefore mentioned? And 2. If they were not, is Scott himself
free by reason of his removal to Rock Island, in the State of
Illinois, as stated in the above admissions?

We proceed to examine the first question.

The act of Congress, upon which the plaintiff relies,
declares that slavery and involuntary servitude, except as a
punishment for crime, shall be forever prohibited in all that
part of the territory ceded by France, under the name
of Louisiana, which lies north of thirty-six degrees thirty
minutes north latitude, and not included within the limits of
Missouri. And the difficulty which meets us at the threshold of
this part of the inquiry is, whether Congress was authorized to
pass this law under any of the powers granted to it by the
Constitution; for if the authority is not given by that
instrument, it is the duty of this court to declare it void and
inoperative, and incapable of conferring freedom upon any one who
is held as a slave under the laws of any one of the States.

The counsel for the plaintiff has laid much stress upon that
article in the Constitution which confers on Congress the power
"to dispose of and make all needful rules and regulations
respecting the territory or other property belonging to the
United States;" but, in the judgement of the court, that
provision had no bearing on the present controversy, and the
power there given, whatever it may be, is confined, and was
intended to be confined, to the territory which at that time
belonged to, or was claimed by, the United States, and was within
their boundaries as settled by the treaty with Great Britain, and
can have no influence upon a territory afterwards acquired from a
foreign Government. It was a special provision for a known and
particular territory, and to meet a present emergency, and
nothing more.

A brief summary of the history of the times, as well as the
careful and measured terms in which the article is framed, will
show the correctness of this proposition.

It will be remembered that, from the commencement of the
Revolutionary war, serious difficulties existed between the
States, in relation to the disposition of large and unsettled
territories which were included in the chartered limits of some
of the States. And some of the other States, and more especially
Maryland, which had no unsettled lands, insisted that as the
unoccupied lands, if wrested from Great Britain, would owe their
preservation to the common purse and the common sword, the money
arising from them ought to be applied in just proportion among
the several States to pay the expenses of the war, and ought not
to be appropriated to the use of the State in whose chartered
limits they might happen to lie, to the exclusion of the other
States, by whose combined efforts and common expense the
territory was defended and preserved against the claim of the
British Government.

These difficulties caused much uneasiness during the war,
while the issue was in some degree doubtful, and the future
boundaries of the United States yet to be defined by treaty, if
we achieved our independence.

The majority of the Congress of the Confederation obviously
concurred in opinion with the State of Maryland, and desired to
obtain from the States which claimed it a cession of this
territory, in order that Congress might raise money on this
security to carry on the war. This appears by the resolution
passed on the 6th of September, 1780, strongly urging the States
to cede these lands to the United States, both for the sake of
peace and union among themselves, and to maintain the public
credit; and this was followed by the resolution of October 10th,
1780, by which Congress pledged itself, that if the lands were
ceded, as recommended by the resolution above mentioned, they
should be disposed of for the common benefit of the United
States, and be settled and formed into distinct republican
States, which should become members of the Federal Union, and
have the same rights of sovereignty, and freedom, and
independence, as other States.

But these difficulties became much more serious after peace
took place, and the boundaries of the United States were
established. Every State, at that time, felt severely the
pressure of its war debt; but in Virginia, and some other States,
there were large territories of unsettled lands, the sale of
which would enable them to discharge their obligations without
much inconvenience; while other States, which had no such
resource, saw before them many years of heavy and burden-some
taxation; and the latter insisted, for the reasons before stated,
that these unsettled lands should be treated as the common
property of the States, and the proceeds applied to their common
benefit.

The letters from the statesmen of that day will show how
much this controversy occupied their thoughts, and the dangers
that were apprehended from it. It was the disturbing element of
the time, and fears were entertained that it might dissolve the
Confederation by which the States were then united.

These fears and dangers were, however, at once removed, when
the State of Virginia, in 1784, voluntarily ceded to the United
States the immense tract of country lying northwest of the river
Ohio, and which was within the acknowledged limits of the State.
The only object of the State, in making this cession, was to put
an end to the threatening and exciting controversy, and to enable
the Congress of that time to dispose of the lands, and
appropriate the proceeds as a common fund for the common benefit
of the States. It was not ceded, because it was inconvenient to
the State to hold and govern it, nor from any expectation that it
could be better or more conveniently governed by the United
States.

The example of Virginia was soon afterwards followed by
other States, and, at the time of the adoption of the
Constitution, all of the States, similarly situated, had ceded
their unappropriated lands, except North Carolina and Georgia.
The main object for which these cessions were desired and made,
was on account of their money value, and to put an end to a
dangerous controversy, as to who was justly entitled to the
proceeds when the lands should be sold. It is necessary to bring
this part of the history of these cessions thus distinctly into
view, because it will enable us the better to comprehend the
phraseology of the article in the Constitution, so often referred
to in the argument.

Undoubtedly the powers of sovereignty and the eminent domain
were ceded with the land. This was essential, in order to make it
effectual, and to accomplish its objects. But it must be
remembered that, at that time, there was no Government of the
United States in existence with enumerated and limited powers;
what was then called the United States, were thirteen separate,
sovereign, independent States, which had entered into a league or
confederation for their mutual protection and advantage, and the
Congress of the United States was composed of the representatives
of these separate sovereignties, meeting together, as equals, to
discuss and decide on certain measures which the States, by the
Articles of Confederation, had agreed to submit to their
decision. But this Confederation had none of the attributes of
sovereignty in legislative, executive, or judicial power. It was
little more than a congress of ambassadors, authorized to
represent separate nations, in matters in which they had a common
concern.

It was this Congress that accepted the cession from
Virginia. They had no power to accept it under the Articles of
Confederation. But they had an undoubted right, as independent
sovereignties, to accept any cession of territory for their
common benefit, which all of them assented to; and it is equally
clear that as their common property, and having no superior to
control them they had the right to exercise absolute dominion
over it, subject only to the restrictions which Virginia had
imposed in her act of cession. There was, as we have said, no
Government of the United States then in existence with special
enumerated and limited powers. The territory belonged to
sovereignties, who, subject to the limitations above mentioned,
had a right to establish any form of government they pleased, by
compact or treaty among themselves, and to regulate rights of
person and rights of property in the territory, as they might
deem proper. It was by a Congress, representing the authority of
these several and separate sovereignties, and acting under their
authority and command, (but not from any authority derived from
the Articles of Confederation,) that the instrument usually
called the ordinance of 1787 was adopted; regulating in much
detail the principles and the laws by which this territory should
be governed; and among other provisions, slavery is prohibited in
it. We do not question the power of the States, by agreement
among themselves, to pass this ordinance, nor its obligatory
force in the territory, while the confederation or league of the
States in their separate sovereign character continued to exist.

This was the state of things when the Constitution of the
United States was formed. The territory ceded by Virginia
belonged to the several confederated States as common property,
and they had united in establishing in it a system of government
and jurisprudence, in order to prepare it for admission as
States, according to the terms of the cession. They were about to
dissolve this federative Union, and to surrender a portion of
their independent sovereignty to a new Government, which, for
certain purposes, would make the people of the several States one
people, and which was to be supreme and controlling within its
sphere of action throughout the United States; but this
Government was to be carefully limited in its powers, and to
exercise no authority beyond those expressly granted by the
Constitution, or necessarily to be implied from the language of
the instrument, and the objects it was intended to accomplish;
and as this league of States would, upon the adoption of the new
Government, cease to have any power over the territory, and the
ordinance they had agreed upon be incapable of execution, and a
mere nullity, it was obvious that some provision was necessary to
give the new Government sufficient power to enable it to carry
into effect the objects for which it was ceded, and the compacts
and agreements which the States had made with each other in the
exercise of their powers of sovereignty. It was necessary that
the lands should be sold to pay the war debt; that a Government
and system of jurisprudence should be maintained in it, to
protect the citizens of the United States who should migrate to
the territory, in their rights of person and of property. It was
also necessary that the new Government, about to be adopted,
should be authorized to maintain the claim of the United States
to the unappropriated lands in North Carolina and Georgia, which
had not then been ceded, but the cession of which was confidently
anticipated upon some terms that would be arranged between the
General Government and these two States. And, moreover, there
were many articles of value besides this property in land, such
as arms, military stores, munitions, and ships of war, which were
the common property of the States, when acting in their
independent characters as confederates, which neither the new
Government nor any one else would have a right to take possession
of, or control, without authority from them; and it was to place
these things under the guardianship and protection of the new
Government, and to clothe it with the necessary powers, that the
clause was inserted in the Constitution which gives Congress the
power "to dispose of and make all needful rules and regulations
respecting the territory or other property belonging to the
United States." It was intended for a specific purpose, to
provide for the things we have mentioned. It was to transfer to
the new Government the property then held in common by the
States, and to give to that Government power to apply it to the
objects for which it had been destined by mutual agreement among
the States before their league was dissolved. It applied only to
the property which the States held in common at that time, and
had no reference whatever to any territory or other property
which the new sovereignty might afterwards itself acquire.

The language used in the clause, the arrangement and
combination of the powers, and the somewhat unusual phraseology
it uses, when it speaks of the political power to be exercised in
the government of the territory, all indicate the design and
meaning of the clause to be such as we have mentioned. It does
not speak of any territory, nor of Territories, but uses language
which, according to its legitimate meaning, points to a
particular thing. The power is given in relation only to the
territory of the United States -- that is, to a territory then in
existence, and then known or claimed as the territory of the
United States. It begins its enumeration of powers by that of
disposing, in other words, making sale of the lands, or raising
money from them, which, as we have already said, was the main
object to the cession, and which is accordingly the first thing
provided for in the article. It then gives the power which was
necessarily associated with the disposition and sale of the lands
-- that is, the power of making needful rules and regulations
respecting the territory. And whatever construction may now be
given to these words, every one, we think, must admit that they
are not the words usually employed by statesmen in giving supreme
power of legislation. They are certainly very unlike the words
used in the power granted to legislate over territory which the
new Government might afterwards itself obtain by cession from a
State, either for its seat of Government, of for forts,
magazines, arsenals, dock yards, and other needful buildings.

And the same power of making needful rules respecting the
territory is, in precisely the same language, applied to the
other property belonging to the United States -- associating the
power over the territory in this respect with the power over
movable or personal property -- that is, the ships, arms, and
munitions of war, which then belonged in common to the State
sovereignties. And it will hardly be said, that this power, in
relation to the last-mentioned objects, was deemed necessary to
be thus specially given to the new Government, in order to
authorize it to make needful rules and regulations respecting the
ships it might itself build, or arms and munitions of war it
might itself manufacture or provide for the public service.

No one, it is believed, would think a moment of deriving the
power of Congress to make needful rules and regulations in
relation to property of this kind from this clause of the
Constitution. Nor can it, upon any fair construction, be applied
to any property but that which the new Government was about to
receive from the confederated States. And if this be true as to
this property, it must be equally true and limited as to the
territory, which is so carefully and precisely coupled with it --
and like it referred to as property in the power granted. The
concluding words of the clause appear to render this construction
irresistible; for, after the provisions we have mentioned, it
proceeds to say, "that nothing in the Constitution shall be so
construed as to prejudice any claims of the United States, or of
any particular State."

Now, as we have before said, all of the States, except North
Carolina and Georgia, had made the cession before the
Constitution was adopted, according to the resolution of Congress
of October 10, 1780. The claims of other States, that the
unappropriated lands in these two States should be applied to the
common benefit, in like manner, was still insisted on, but
refused by the States. And this member of the clause in question
evidently applies to them, and can apply to nothing else. It was
to exclude the conclusion that either party, by adopting the
Constitution, would surrender what they deemed their rights. And
when the latter provision relates so obviously to the
unappropriated lands not yet ceded by the States, and the first
clause makes provision for those then actually ceded, it is
impossible, by any just rule of construction, to make the first
provision general, and extend to all territories, which the
Federal Government might in any way afterwards acquire, when the
latter is plainly and unequivocally confined to a particular
territory; which was a part of the same controversy, and involved
in the same dispute, and depended upon the same principles. The
union of the two provisions in the same clause shows that they
were kindred subjects; and that the whole clause is local, and
relates only to lands, within the limits of the United States,
which had been or then were claimed by a State; and that no other
territory was in the mind of the framers of the Constitution, or
intended to be embraced in it. Upon any other construction it
would be impossible to account for the insertion of the last
provision in the place where it is found, or to comprehend why,
or for what object, it was associated with the previous
provision.

This view of the subject is confirmed by the manner in which
the present Government of the United States dealt with the
subject as soon as it came into existence. It must be borne in
mind that the same States that formed the Confederation also
formed and adopted the new Government, to which so large a
portion of their former sovereign powers were surrendered. It
must also be borne in mind that all of these same States which
had then ratified the new Constitution were represented in the
Congress which passed the first law for the government of this
territory; and many of the members of that legislative body had
been deputies from the States under the Confederation -- had
united in adopting the ordinance of 1787, and assisted in forming
the new Government under which they were then acting, and whose
powers they were then exercising. And it is obvious from the law
they passed to carry into effect the principles and provisions of
the ordinance, that they regarded it as the act of the States
done in the exercise of their legitimate powers at the time. The
new Government took the territory as it found it, and in the
condition in which it was transferred, and did not attempt to
undo anything that had been done. And, among the earliest laws
passed under the new Government, is one reviving the ordinance of
1787, which had become inoperative and a nullity upon the
adoption of the Constitution. This law introduces no new form or
principles for its government, but recites, in the preamble, that
it is passed in order that this ordinance may continue to have
full effect, and proceeds to make only those rules and
regulations which were needful to adapt it to the new Government,
into whose hands the power had fallen. It appears, therefore,
that this Congress regarded the purposes to which the land in
this Territory was to be applied, and the form of government and
principles of jurisprudence which were to prevail there, while it
remained in the Territorial state, as already determined on by
the States when they had full power and right to make the
decision; and that the new Government, having received it in this
condition, ought to carry substantially into effect the plans and
principles which had been previously adopted by the States, and
which no doubt the States anticipated when they surrendered their
power to the new Government. And if we regard this clause of the
Constitution as pointing to this Territory, with a Territorial
Government already established in it, which had been ceded to the
States for the purposes hereinbefore mentioned -- every word in
it is perfectly appropriate and easily understood, and the
provisions it contains are in perfect harmony with the objects
for which it was ceded, and with the condition of its government
as a Territory at the time. We can, then, easily account for the
manner in which the first Congress legislated on the subject --
and can also understand why this power over the territory was
associated in the same clause with the other property of the
United States, and subjected to the like power of making needful
rules and regulations. But if the clause is construed in the
expanded sense contended for, so as to embrace any territory
acquired from a foreign nation by the present Government, and to
give it in such territory a despotic and unlimited power over
persons and property, such as the confederated States might
exercise in their common property, it would be difficult to
account for the phraseology used, when compared with other grants
of power -- and also for its association with the other
provisions in the same clause.

The Constitution has always been remarkable for the felicity
of its arrangement of different subjects, and the perspicuity and
appropriateness of the language it sues. But if this clause is
construed to extend to territory acquired by the present
Government from a foreign nation, outside of the limits of any
charter from the British Government to a colony, it would be
difficult to say, why it was deemed necessary to give the
Government the power to sell any vacant lands belonging to the
sovereignty which might be found within it; and if this was
necessary, why the grant of this power should precede the power
to legislate over it and establish a Government there; and still
more difficult to say, why it was deemed necessary so specially
and particularly to grant the power to make needful rules and
regulations in relation to any personal or movable property it
might acquire there. For the words, other property necessarily,
by every known rule of interpretation, must mean property of a
different description from territory of land. And the difficulty
would perhaps be insurmountable in endeavoring to account for the
last member of the sentence, which provides that "nothing in this
Constitution shall be so construed as to prejudice any claims of
the United States or any particular State," or to say how any
particular State could have claims in or to a territory ceded by
a foreign Government, or to account for associating this
provisions with the preceding provisions of the clause, with
which it would appear to have no connection.

The words "needful rules and regulations" would seem, also,
to have been cautiously used for some definite object. They are
not the words usually employed by statesmen, when they mean to
give the powers of sovereignty, or to establish a Government, or
to authorize its establishment. Thus, in the law to renew and
keep alive the ordinance of 1787, and to reestablish the
Government, the title of the law is: "An act to provide for the
government of the territory northwest of the river Ohio." And in
the Constitution, when granting the power to legislate over the
territory that may be selected for the seat of Government
independently of a State, it does not say Congress shall have
power "to make all needful rules and regulations respecting the
territory;" but it declares that "Congress shall have power to
exercise exclusive legislation in all cases whatsoever over such
District (not exceeding ten miles square) as may, by cession of
particular States and the acceptance of Congress, become the seat
of the Government of the United States.

The words "rules and regulations" are usually employed in
the Constitution in speaking of some particular specified power
which it means to confer on the Government, and not, as we have
seen, when granting general powers of legislation. As, for
example, in the particular power to Congress "to make rules for
the Government and regulation of the land and naval forces, or
the particular and specific power to regulate commerce;" "to
establish an uniform rule of naturalization;" "to coin money and
regulate the value thereof." And to construe the words of which
we are speaking as a general and unlimited grant of sovereignty
over territories which the Government might afterwards acquire,
is to use them in a sense and for a purpose for which they were
not used in any other part of the instrument. But if confined to
a particular Territory, in which a Government and laws had
already been established, but which would require some
alterations to adapt it to the new Government, the words are
peculiarly applicable and appropriate for that purpose.

The necessity of this special provision in relation to
property and the rights or property held in common by the
confederated States, is illustrated by the first clause of the
sixth article. This clause provides that "all debts, contracts,
and engagements entered into before the adoption of this
Constitution, shall be as valid against the United States under
this Government as under the Confederation." This provision, like
the one under consideration, was indispensable if the new
Constitution was adopted. The new Government was not a mere
change in a dynasty, or in a form of government, leaving the
nation or sovereignty the same, and clothed with all the rights,
and bound by all the obligations of the preceding one. But, when
the present United States came into existence under the new
Government, it was a new political body, a new nation, then for
the first time taking its place in the family of nations. It took
nothing by succession from the Confederation. It had no right, as
its successor, to any property or rights of property which it had
acquired, and was not liable for any of its obligations. It was
evidently viewed in this light by the framers of the
Constitution. And as the several States would cease to exist in
their former confederated character upon the adoption of the
Constitution, and could not, in that character, again assemble
together, special provisions were indispensable to transfer to
the new Government the property and rights which at that time
they held in common; and at the same time to authorize it to lay
taxes and appropriate money to pay the common debt which they had
contracted; and this power could only be given to it by special
provisions in the Constitution. The clause in relation to the
territory and other property of the United States provided for
the first, and the clause last quoted provided for the other.
They have no connection with the general powers and rights of
sovereignty delegated to the new Government, and can neither
enlarge nor diminish them. They were inserted to meet a present
emergency, and not to regulate its powers as a Government.

Indeed, a similar provision was deemed necessary, in
relation to treaties made by the Confederation; and when in the
clause next succeeding the one of which we have last spoken, it
is declared that treaties shall be the supreme law of the land,
care is taken to include, by express words, the treaties made by
the confederated States. The language is: "and all treaties made,
or which shall be made, under the authority of the United States,
shall be the supreme law of the land."

Whether, therefore, we take the particular clause in
question, by itself, or in connection with the other provisions
of the Constitution, we think it clear, that it applies only to
the particular territory of which we have spoken, and cannot, by
any just rule of interpretation, be extended to territory which
the new Government might afterwards obtain from a foreign nation.
Consequently, the power which Congress may have lawfully
exercised in this Territory, while it remained under a
Territorial Government, and which may have been sanctioned by
judicial decision, can furnish no justification and no argument
to support a similar exercise of power over territory afterwards
acquired by the Federal Government. We put aside, therefore, any
argument, drawn from precedents, showing the extent of the power
which the General Government exercised over slavery in this
Territory, as altogether inapplicable to the case before us.

But the case of the American and Ocean Insurance Companies
v. Canter (1 Pet., 511) has been quoted as establishing a
different construction of this clause of the Constitution. There
is, however, not the slightest conflict between the opinion now
given and the one referred to; and it is only by taking a single
sentence out of the latter and separating it from the context,
that even an appearance of conflict can be shown. We need not
comment on such a mode of expounding an opinion of the court.
Indeed it most commonly misrepresents instead of expounding it.
And this is fully exemplified in the case referred to, where, if
one sentence is taken by itself, the opinion would appear to be
in direct conflict with that now given; but the words which
immediately follow that sentence show that the court did not mean
to decide the point, but merely affirmed the power of Congress to
establish a Government in the Territory, leaving it an open
question, whether that power was derived from this clause in the
Constitution, or was to be necessarily inferred from a power to
acquire territory by cession from a foreign Government. The
opinion on this part of the case is short, and we give the whole
of it to show how well the selection of a single sentence is
calculated to mislead.

The passage referred to is in page 542, in which the court,
in speaking of the power of Congress to establish a Territorial
Government in Florida until it should become a State, uses the
following language:

"In the mean time Florida continues to be a Territory of the
United States, governed by that clause of the Constitution which
empowers Congress to make all needful rules and regulations
respecting the territory or other property of the United States.
Perhaps the power of governing a Territory belonging to the
United States, which has not, by becoming a State, acquired the
means of self-government, may result, necessarily, from the facts
that it is not within the jurisdiction of any particular State,
and is within the power and jurisdiction of the United States.
The right to govern may be the inevitable consequence of the
right to acquire territory. Whichever may be the source from
which the power is derived, the possession of it is
unquestionable."

It is thus clear, from the whole opinion on this point, that
the court did not mean to decide whether the power was derived
from the clause in the Constitution, or was the necessary
consequence of the right to acquire. They do decide that the
power in Congress is unquestionable, and in this we entirely
concur, and nothing will be found in this opinion to the
contrary. The power stands firmly on the latter alternative put
by the court -- that is, as "the inevitable consequence of the
right to acquire territory."

And what still more clearly demonstrates that the court did
not mean to decide the question, but leave it open for future
consideration, is the fact that the case was decided in the
Circuit Court By Mr. Justice Johnson, and his decision was
affirmed by the Supreme Court. His opinion at the circuit is
given in full in a note to the case, and in that opinion he
states, in explicit terms, that the clause of the Constitution
applies only to the territory then within the limits of the
United States, and not to Florida, which had been acquired by
cession from Spain. This part of his opinion will be found in the
note in page 517 of the report. But he does not dissent from the
opinion of the Supreme Court; thereby showing that, in his
judgment, as well as that of the court, the case before them did
not call for a decision on that particular point, and the court
abstained from deciding it. And in a part of its opinion
subsequent to the passage we have quoted, where the court speak
of the legislative power of Congress in Florida, they still speak
with the same reserve. And in page 546, speaking of the power of
Congress to authorize the Territorial Legislature to establish
courts there, the court say: "They are legislative courts,
created in virtue of the general right of sovereignty which
exists in the Government, or in virtue of that clause which
enables Congress to make all needful rules and regulations
respecting the territory belonging to the United States."

It has been said that the construction given to this clause
is new, and now for the first time brought forward. The case of
which we are speaking, and which has been so much discussed,
shows that the fact is otherwise. It shows that precisely the
same question came before Mr. Justice Johnson, at his circuit,
thirty years ago -- was fully considered by him, and the same
construction given to the clause in the Constitution which is now
given by this court. And that upon an appeal from his decision
the same question was brought before this court, but was not
decided because a decision upon it was not required by the case
before the court.

There is another sentence in the opinion which has been
commented on, which even in a still more striking manner shows
how one may mislead or be misled by taking out a single sentence
from the opinion of a court, and leaving out of view what
precedes and follows. It is in page 546, near the close of the
opinion, in which the court say: "In legislating for them," (the
territories of the United States,) "Congress exercises the
combined powers of the General and of a State Government." And it
is said, that as a State may unquestionably prohibit slavery
within its territory, this sentence decides in effect that
Congress may do the same in a Territory of the United States,
exercising there the powers of a State, as well as the power of
the General Government.

The examination of this passage in the case referred to,
would be more appropriate when we come to consider in another
part of this opinion what power Congress can constitutionally
exercise in a Territory, over the rights of person or rights of
property of a citizen. But, as it is in the same case with the
passage we have before commented on, we dispose of it now, as it
will save the court from the necessity of referring again to the
case. And it will be seen upon reading the page in which this
sentence is found, that it has no reference whatever to the power
of Congress over rights of person or rights of property -- but
relates altogether to the power of establishing judicial
tribunals to administer the laws constitutionally passed, and
defining the jurisdiction they may exercise.

The law of Congress establishing a Territorial Government in
Florida, provided that the Legislature of the Territory should
have legislative powers over "all rightful objects of
legislation; but no law should be valid which was inconsistent
with the laws and Constitution of the United States."

Under the power thus conferred, the Legislature of Florida
passed an act, erecting a tribunal at Key West to decide cases of
salvage. And in the case of which we are speaking, the question
arose whether the Territorial Legislature could be authorized by
Congress to establish such a tribunal, with such powers; and one
of the parties, among other objections, insisted that Congress
could not under the Constitution authorize the Legislature of the
Territory to establish such a tribunal with such powers, but that
it must be established by Congress itself; and that a sale of
cargo made under its order, to pay salvage, was void, as made
without legal authority, and passed no property to the purchaser.

It is in disposition of this objection that the sentence
relied on occurs, and the court begin that part of the opinion by
stating with great precision the point which they are about to
decide.

They say: "It has been contended that by the Constitution of
the United States, the judicial power of the United States
extends to all cases of admiralty and maritime jurisdiction; and
that the whole of the judicial power must be vested 'in one
Supreme Court, and in such inferior courts as Congress shall from
time to time ordain and establish.' Hence it has been argued that
Congress cannot vest admiralty jurisdiction in courts created by
the Territorial Legislature."

And after thus clearly stating the point before them, and
which they were about to decide, they proceed to show that these
Territorial tribunals were not constitutional courts, but merely
legislative, and that Congress might, therefore, delegate the
power to the Territorial Government to establish the court in
question; and they conclude that part of the opinion in the
following words: "Although admiralty jurisdiction can be
exercised in the States in those courts only which are
established in pursuance of the third article of the
Constitution, the same limitation does not extend to the
Territories. In legislating for them, Congress exercises the
combined powers of the General and State Governments."

Thus it will be seen by these quotations from the opinion,
that the court, after stating the question it was about to decide
in a manner too plain to be misunderstood, proceeded to decide
it, and announced, as the opinion of the tribunal, that in
organizing the judicial department of the Government in a
Territory of the United States, Congress does not act under, and
is not restricted by, the third article in the Constitution, and
is not bound, in a Territory, to ordain and establish courts in
which the judges hold their offices during good behavior, but may
exercise the discretionary power which a State exercises in
establishing its judicial department, and regulating the
jurisdiction of its courts, and may authorize the territorial
Government to establish, or may itself establish, courts in which
the judges hold their offices for a term of years only; and may
vest in them judicial power upon subjects confided to the
judiciary of the United States. And in doing this, Congress
undoubtedly exercises the combined power of the General and a
State Government. It exercises the discretionary power of a State
Government in authorizing the establishment of a court in which
the judges hold their appointments for a term of years only, and
not during good behavior; and it exercises the power of the
General Government in investing that court with admiralty
jurisdiction, over which the general Government had exclusive
jurisdiction in the Territory.

No one, we presume, will question the correctness of that
opinion; nor is there anything in conflict with it in the opinion
now given. The point decided in the case cited has no relation to
the question now before the court. That depended on the
construction of the third article of the Constitution, in
relation to the judiciary of the United States, and the power
which Congress might exercise in a Territory in organizing the
judicial department of the Government. The case before us depends
upon other and different provisions of the Constitution,
altogether separate and apart from the one above mentioned. The
question as to what courts Congress may ordain or establish in a
Territory to administer laws which the Constitution authorizes it
to pass, and what laws it is or is not authorized by the
Constitution to pass, are widely different -- are regulated by
different and separate articles of the Constitution, and stand
upon different principles. And we are satisfied that no one who
reads attentively the page in Peters's Reports to which we have
referred, can suppose that the attention of the court was drawn
for a moment to the question now before this court, or that it
meant in that case to say that Congress had a right to prohibit a
citizen of the United States from taking any property which he
lawfully held into a Territory of the United States.

This brings us to examine by what provision of the
Constitution the present Federal Government, under its delegated
and restricted powers, is authorized to acquire territory outside
of the original limits of the United States, and what powers it
may exercise therein over the person or property of a citizen of
the United States, while it remains a Territory, and until it
shall be admitted as one of the States of the Union.

There is certainly no power given by the Constitution to the
Federal Government to establish or maintain colonies bordering on
the United States or at a distance, to be ruled and governed at
its own pleasure; nor to enlarge its territorial limits in any
way, except by the admission of new States. That power is plainly
given; and if a new State is admitted, it needs no further
legislation by Congress, because the Constitution itself defines
the relative rights and powers, and duties of the State, and the
citizens of the State, and the Federal Government. But no power
is given to acquire a Territory to be held and governed
permanently in that character.

And indeed the power exercised by Congress to acquire
territory and establish a Government there, according to its own
unlimited discretion, was viewed with great jealousy by the
leading statesmen of the day. And in the Federalist, (No. 38,)
written by Mr. Madison, he speaks of the acquisition of the
Northwestern Territory by the Confederated States, by the cession
from Virginia, and the establishment of a Government there, as an
exercise of power not warranted by the Articles of Confederation,
and dangerous to the liberties of the people. And he urges the
adoption of the Constitution as a security and safeguard against
such an exercise of power.

We do not mean, however, to question the power of Congress
in this respect. The power to expand the territory of the United
States by the admission of new States is plainly given; and in
the construction of this power by all the departments of the
Government, it has been held to authorize the acquisition of
territory, not fit for admission at the time, but to be admitted
as soon as its population and situation would entitle it to
admission. It is acquired to become a State, and not to be held
as a colony and governed by Congress with absolute authority; and
as the propriety of admitting a new State is committed to the
sound discretion of Congress, the power to acquire territory for
that purpose, to be held by the United States until it is in a
suitable condition to become a Stated upon an equal footing with
the other States, must rest upon the same discretion. It is a
question for the political department of the Government, and not
the judicial; and whatever the political department of the
Government shall recognize as within the limits of the United
States, the judicial department is also bound to recognize, and
to administer in it the laws of the United States, so far as they
apply, and to maintain in the Territory the authority and rights
of the Government, and also the personal rights and rights of
property of individual citizens, as secured by the Constitution.
All we mean to say on this point is, that, as there is no express
regulation in the Constitution defining the power which the
General Government may exercise over the person or property of a
citizen in a Territory thus acquired, the court must necessarily
look to the provisions and principles of the Constitution, and
its distribution of powers, for the rules and principles by which
its decision must be governed.

Taking this rule to guide us, it may be safely assumed that
citizens of the United States who migrate to a Territory
belonging to the people of the United States, cannot be ruled as
mere colonists, dependent upon the will of the General
Government, and to be governed by any laws it may think proper to
impose. The principle upon which our Governments rest, and upon
which alone they continue to exist, is the union of States,
sovereign and independent within their own limits in their
internal and domestic concerns, and bound together as one people
by a General Government, possessing certain enumerated and
restricted powers, delegated to it by the people of the several
States, and exercising supreme authority within the scope of the
powers granted to it, throughout the dominion of the United
States. A power, therefore, in the General Government to obtain
and hold colonies and dependent territories, over which they
might legislate without restriction, would be inconsistent with
its own existence in its present form. Whatever it acquires, it
acquires for the benefit of the people of the several states who
created it. It is their trustee acting for them, and charged with
the duty of promoting the interests of the whole people of the
Union in the exercise of the powers specifically granted.

At the time when the Territory in question was obtained by
cession from France, it contained no population fit to be
associated together and admitted as a State; and it therefore was
absolutely necessary to hold possession of it, as a Territory
belonging to the United States, until it was settled and
inhabited by a civilized community capable of self-government,
and in a condition to be admitted to equal terms with the other
States as a member of the Union. But, as we have before said, it
was acquired by the General Government, as the representative and
trustee of the people of the United States, and it must therefore
be held in that character for their common and equal benefit; for
it was the people of the several States, acting through their
agent and representative, the Federal Government, who in fact
acquired the Territory in question, and the Government holds it
for their common use until it shall be associated with the other
States as a member of the Union.

But until that time arrives, it is undoubtedly necessary
that some Government should be established, in order to organize
society, and to protect the inhabitants in their persons and
property; and as the people of the United States could act in
this matter only through the Government which represented them,
and through which they spoke and acted when the Territory was
obtained, it was not only within the scope of its powers, but it
was its duty to pass such laws and establish such a Government as
would enable those by whose authority they acted to reap the
advantages anticipated from its acquisition, and to gather there
a population which would enable it to assume the position to
which it was destined among the States of the Union. The power to
acquire necessarily carries with it the power to preserve and
apply to the purposes for which it was acquired. The form of
government to be established necessarily rested in the discretion
of Congress.It was their duty to establish the one that would be
best suited for the protection and security of the citizens of
the United States, and other inhabitants who might be authorized
to take up their abode there, and that must always depend upon
the existing condition of the Territory, as to the number and
character of its inhabitants, and their situation in the
Territory. In some cases a Government, consisting of persons
appointed by the Federal Government, would best serve the
interests of the Territory, when the inhabitants were few and
scattered, and new to one another. In other instances, it would
be more advisable to commit the powers of self-government to the
people who had settled in the Territory, as being the most
competent to determine what was best for their own interests. But
some form of civil authority would be absolutely necessary to
organize and preserve civilized society, and prepare it to become
a State; and what is the best form must always depend on the
condition of the Territory at the time, and the choice of the
mode must depend upon the exercise of a discretionary power by
Congress, acting within the scope of its constitutional
authority, and not infringing upon the rights of person or rights
of property of the citizen who might go there to reside, or for
any other lawful purpose. It was acquired by the exercise of this
discretion, and it must be held and governed in like manner,
until it is fitted to be a State.

But the power of Congress over the person or property of a
citizen can never be a mere discretionary power under our
Constitution and form of Government. The powers of the Government
and the rights and privileges of the citizen are regulated and
plainly defined by the Constitution itself. And when the
Territory becomes a part of the United States, the Federal
Government enters into possession in the character impressed upon
it by those who created it. It enters upon it with its powers
over the citizen strictly defined, and limited by the
Constitution, from which it derives its own existence, and by
virtue of which alone it continues to exist and act as a
Government and sovereignty. It has no power of any kind beyond
it; and it cannot, when it enters a Territory of the United
States, put off its character, and assume discretionary or
despotic powers which the Constitution has denied to it. It
cannot create for itself a new character separated from the
citizens of the United States, and the duties it owes them under
of the United States, the Government and the citizen both enter
it under the authority of the Constitution, with their respective
rights defined and marked out; and the Federal Government can
exercise no power over his person or property, beyond what that
instrument confers, nor lawfully deny any right which it has
reserved.

A reference to a few of the provisions of the Constitution
will illustrate this proposition.

For example, no one, we presume, will contend that Congress
can make any law in a Territory respecting that establishment of
religion, or the free exercise thereof, or abridging the freedom
of speech or of the press, or the right of the people of the
Territory peaceably to assemble, and to petition the Government
for the redress of grievances.

Nor can Congress deny to the people the right to keep and
bear arms, nor the right to trial by jury, nor compel any one to
be a witness against himself in a criminal proceeding.

These powers, and others, in relation to rights of person,
which it is not necessary here to enumerate, are, in express and
positive terms, denied to the General Government; and the rights
of private property have been guarded with equal care. Thus the
rights of property are united with the rights of person, and
placed on the same ground by the fifth amendment to the
Constitution, which provides that no person shall be deprived of
life, liberty, and property, without due process of law. And an
act of Congress which deprives a citizen of the United States of
his liberty or property, merely because he came himself or
brought his property into a particular Territory of the United
States, and who had committed no offence against the laws, could
hardly be dignified with the name of due process of law.

So, too, it will hardly be contended that Congress could by
law quarter a soldier in a house in a Territory without the
consent of the owner, in time of peace; nor in time of war, but
in a manner prescribed by law. Nor could they by law forfeit the
property of a citizen in a Territory who was convicted of
treason, for a longer period than the life of the person
convicted; nor take private property for public use without just
compensation.

The powers over person and property of which we speak are
not only not granted to Congress, but are in express terms
denied, and they are forbidden to exercise them. And this
prohibition is not confined to the States, but the words are
general, and extend to the whole territory over which the
Constitution gives it power to legislate, including those
portions of it remaining under Territorial Government, as well as
that covered by States. It is a total absence of power everywhere
within the dominion of the United States, and places the citizens
of a Territory, so far as these rights are concerned, on the same
footing with citizens of the States, and guards them as firmly
and plainly against any inroads which the General Government
might attempt, under the plea of implied or incidental powers.
And if Congress itself cannot do this -- if it is beyond the
powers conferred on the Federal Government -- it will be
admitted, we presume, that it could not authorize a Territorial
Government to exercise them. It could confer no power on any
local Government, established by its authority, to violate the
provisions of the Constitution.

It seems, however, to be supposed, that there is a
difference between property in a slave and other property, and
that different rules may be applied to it in expounding the
Constitution of the United States. And the laws and usages of
nations, and the writing of eminent jurists upon the relation of
master and slave and their mutual rights and duties, and the
powers which Governments may exercise over it, have been dwelt
upon in the argument.

But in considering the question before us, it must be borne
in mind that there is no law of nations standing between the
people of the United States and their Government, and interfering
with their relation to each other. The powers of the Government,
and the rights of the citizen under it, are positive and
practical regulations plainly written down. The people of the
United States have delegated to it certain enumerated powers, and
forbidden it to exercise others. It has no power over the person
or property of a citizen but what the citizens of the United
States have granted. And no laws or usages of other nations, or
reasoning of statesmen or jurists upon the relations of master
and slave, can enlarge the powers of the Government, or take from
the citizens the rights they have reserved. And if the
Constitution recognizes the right of property of the master in a
slave, and makes no distinction between that description of
property and other property owned by a citizen, no tribunal,
acting under the authority of the United States, whether it be
legislative, executive, or judicial, has a right to draw such a
distinction, or deny to it the benefit of the provisions and
guarantees which have been provided for the protection of private
property against the encroachments of the Government.

Now, as we have already said in an earlier part of this
opinion, upon a different point, the right of property in a slave
is distinctly and expressly affirmed in the Constitution. The
right to traffic in it, like an ordinary article of merchandise
and property, was guarantied to the citizens of the United
States, in every State that might desire it, for twenty years.
And the Government in express terms is pledged to protect it in
all future time, if the slave escapes from his owner. This is
done in plain words -- too plain to be misunderstood. And no word
can be found in the Constitution which gives Congress a greater
power over slave property, or which entitles property of that
kind to less protection than property of any other description.
The only power conferred is the power coupled with the duty of
guarding and protecting the owner in his rights.

Upon these considerations, it is the opinion of the court
that the act of Congress which prohibited a citizen from holding
and owning property of this kind in the territory of the United
States north of the line therein mentioned, is not warranted by
the Constitution, and is therefore void; and that neither Dred
Scott himself, nor any of his family, were made free by being
carried into this territory; even if they had been carried there
by the owner, with the intention of becoming a permanent
resident.

We have so far examined the case, as it stands under the
Constitution of the United States, and the powers thereby
delegated to the Federal Government.

But there is another point in the case which depends on
State power and State law. And it is contended, on the part of
the plaintiff, that he is made free by being taken to Rock
Island, in the State of Illinois, independently of his residence
in the territory of the United States; and being so made free, he
was not again reduced to a state of slavery by being brought back
to Missouri.

Our notice of this part of the case will be very brief; for
the principle on which it depends was decided in this court, upon
much consideration, in the case of Strader et al. v. Graham,
reported in 10th Howard, 82. In that case, the slaves had been
taken from Kentucky to Ohio, with the consent of the owner, and
afterwards brought back to Kentucky. And this court held that
their status or condition, as free or slave, depended upon the
laws of Kentucky, when they were brought back into that State,
and not of Ohio; and that this court had no jurisdiction to
revise the judgment of a State court upon its own laws. This was
the point directly before the court, and the decision that this
court had not jurisdiction turned upon it, as will be seen by the
report of the case.

So in this case. As Scott was a slave when taken into the
State of Illinois by his owner, and was there held as such, and
brought back in that character, his status, as free or slave,
depended on the laws of Missouri, and not of Illinois.

It has, however, been urged in the argument, that by the
laws of Missouri he was free on his return, and that this case,
therefore, cannot be governed by the case of Strader et al. v.
Graham, where it appeared, by the laws of Kentucky, that the
plaintiffs continued to be slaves on their return from Ohio. But
whatever doubts or opinions may, at one time, have been
entertained upon this subject, we are satisfied, upon a careful
examination of all the cases decided in the State courts of
Missouri referred to, that it is now firmly settled by the
decisions of the highest court in the State, that Scott and his
family upon their return were not free, but were, by the laws of
Missouri, the property of the defendant; and that the Circuit
Court of the United States had no jurisdiction, when, by the laws
of the State, the plaintiff was a slave, and not a citizen.

Moreover, the plaintiff, it appears, brought a similar
action against the defendant in the State court of Missouri,
claiming the freedom of himself and his family upon the same
grounds and the same evidence upon which he relies in the case
before the court. The case was carried before the Supreme Court
of the State; was fully argued there; and that court decided that
neither the plaintiff nor his family were entitled to freedom,
and were still the slaves of the defendant; and reversed the
judgment of the inferior State court, which had given a different
decision. If the plaintiff supposed that this judgment of the
Supreme Court of the State was erroneous, and that this court had
jurisdiction to revise and reverse it, the only mode by which he
could legally bring it before this court was by writ of error
directed to the Supreme Court of the State, requiring it to
transmit the record to this court. If this had been done, it is
too plain for argument that the writ must have been dismissed for
want of jurisdiction in this court. The case of Strader and
others v. Graham is directly in point; and, indeed, independent
of any decision, the language of the 25th section of the act of
1789 is too clear and precise to admit of controversy.

But the plaintiff did not pursue the mode prescribed by law
for bringing the judgment of a State court before this court for
revision, but suffered the case to be remanded to the inferior
State court, where it is still continued, and is, by agreement of
parties, to await the judgment of this court on the point. All of
this appears on the record before us, and by the printed report
of the case.

And while the case is yet open and pending in the inferior
State court, the plaintiff goes into the Circuit Court of the
United States, upon the same case and the same evidence, and
against the same party, and proceeds to judgment, and then brings
here the same case from the Circuit Court, which the law would
not have permitted him to bring directly from the State court.
And if this court takes jurisdiction in this form, the result, so
far as the rights of the respective parties are concerned, is in
every respect substantially the same as if it had in open
violation of law entertained jurisdiction over the judgment of
the State court upon a writ of error, and revised and reversed
its judgment upon the ground that its opinion upon the question
of law was erroneous. It would ill become this court to sanction
such an attempt to evade the law, or to exercise an appellate
power in this circuitous way, which it is forbidden to exercise
in the direct and regular and invariable forms of judicial
proceedings.

Upon the whole, therefore, it is the judgment of this court,
that it appears by the record before us that the plaintiff in
error is not a citizen of Missouri, in the sense in which that
word is used in the Constitution; and that the Circuit Court of
the United States, for that reason, had no jurisdiction in the
case, and could give no judgment in it. Its judgment for the
defendant must, consequently, be reversed, and a mandate issued,
directing the suit to be dismissed for want of jurisdiction.